Debates — Public Service Pensions and Judicial Offices Act 2022

Report stage in the Lords

29 Nov 202137 speechesView in Hansard ↗

Viscount Younger of Leckie (Con)My Lords, before I turn to the amendments in this group, I will begin by briefly reminding the House of the driving for…
Speaker
Viscount Younger of Leckie (Con)Conservative
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My Lords, before I turn to the amendments in this group, I will begin by briefly reminding the House of the driving force behind this Bill and why it is so important that we get it right. In the light of the Court of Appeal’s judgment, the Government have taken steps to provide an effective remedy to the discrimination that arose in public service pension schemes. The Government have sought to approach this matter responsibly from the outset, and this Bill is key in ensuring an effective remedy for the 3.4 million people who are affected. At the heart of the Bill is fairness and equal treatment for the public servants on whom we all rely. To ensure that we achieve this objective, the Bill is underpinned by the core principles of greater fairness between lower and higher earners, fairness for the taxpayer, future sustainability and affordability of public service pensions. I recognise that tabling a large volume of amendments is highly unusual at this stage of a Bill’s passage. I want to take a moment to explain why this approach has proved necessary—indeed, crucial—to ensuring a robust and effective remedy. As we have all acknowledged, this is a complex and technical matter. The Bill covers more than 40 schemes which each individually have their own layers of detail and complexity. We are dealing with a somewhat unprecedented issue, and retrospective changes on this scale have not previously been required for occupational pension schemes. However, it is undoubtedly vital that, despite the complexity, we get this right. Since the Bill was introduced, the Government have continued to work with the schemes, stakeholders and departments to check and re-check it to ensure that it will deliver our commitments to remove the discrimination and offer a complete and effective remedy. The amendments I have tabled today reflect that work and clarify, correct or adjust the Bill to ensure that it works correctly for each of the schemes. The first group is large and consists of technical amendments. The House will hopefully be pleased to hear that I will not seek to set out the detail of each and every amendment, but I hope your Lordships will find it helpful if I explain the themes that they address. I will of course be happy to turn to specific amendments if your Lordships have any questions. A large number of the amendments in this group deal with a single theme. In reviewing the Bill, we recognised that a gap exists in how some of the processes operate for members who die before they are able to make a deferred choice. So, 44 amendments are needed to correct the position and ensure that the Bill provides an effective remedy for instances in which a member sadly dies before they reach their retirement. The reason why so many amendments are needed to achieve this outcome is that it must be applied across all the key areas of the remedy so that, for example, any correction of pension benefits or member contributions in relation to a deceased member can be addressed with the member’s personal representatives. The changes must also be made across the provisions for the main schemes and those for the judiciary. The next theme is amendments which have arisen from work that we have undertaken with each of the public service pension schemes. There are a number of differences between the schemes within the scope of the Bill—for example, to reflect the different needs of the workforces. We have identified some scheme-specific issues that must be reflected in the Bill to ensure that the remedy operates correctly for their members.
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Lord Davies of Brixton (Lab)My Lords, I do not have a current interest to declare, but it would be appropriate to mention that, until the end of Au…
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Lord Davies of Brixton (Lab)Labour
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My Lords, I do not have a current interest to declare, but it would be appropriate to mention that, until the end of August when I gave up the work, I was the paid adviser to a number of trade unions, advising them on this specific issue. It appears in the register of interests for another year, but I no longer have any direct interest. I have three questions for the Minister. First, he foreshadowed at Second Reading that a raft of amendments was coming. I think it has been suggested that there will be further amendments; clearly not in this House, but there will be a further batch when the Bill is considered in the Commons, which will come back to us. Is this still the case? Secondly, and more specifically, the Government have made proposals for changes to the cost control mechanism, for which primary legislation will be required. Is it envisaged that they will be made to this Bill or will a separate Bill come forward at a later stage? Before I make my third point, I first thank the Minister very much; he has been extremely open and informative. He has gone out of his way to make sure that we understand what these amendments are for, and I welcome that. One of the amendments picks up a point I made in my Amendment 6 in Committee relating to the potential payment of remedial AVCs—a wonderful concept. My amendment was obviously very simple, and we now have a much more extensive and substantial change. It will be a complex issue and I recognise that it will be complex to administer. One of the problems we have is that there is a demand, but we have no way of telling how big it will be. The respective scheme advisory boards will have to look at and decide what proportionate and appropriate steps they need to take. I hope the Minister will indicate that they are prepared to facilitate that.
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Baroness Janke (LD)I too thank the Minister for his time and for the engagement he has provided throughout the Bill, particularly regardin…
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Baroness Janke (LD)Liberal Democrat
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I too thank the Minister for his time and for the engagement he has provided throughout the Bill, particularly regarding these amendments. Considering the scale, complexity and magnitude of the Bill, together with the millions who will be affected by it, I understand that these amendments try to cover a variety of contexts and circumstances to provide a comprehensive remedy to the previous discrimination. I recognise that the whole range of contexts and circumstances means that many will require fine detail. I hope these will, in many ways, support the millions of public sector workers who have suffered discrimination as a result of earlier circumstances. We will see later some of the specific issues we raised in Committee. I hope the Minister can assure us that these amendments have taken account of those. We will explore that later.
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Lord Ponsonby of Shulbrede (Lab)My Lords, I thank the Minister for his explanation of this extensive group of amendments. I too thank him and his Bill…
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Lord Ponsonby of Shulbrede (Lab)Labour
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My Lords, I thank the Minister for his explanation of this extensive group of amendments. I too thank him and his Bill team for engaging with me and my noble friend Lord Davies leading up to Report and for the explanation of the late additions to the Bill. The Minister recognised that it is unusual to bring forward such a large number of amendments at such a late stage. However—and this is unusual on our part—we are content that he has done so. As my noble friend said, we understand that there may be further amendments when the Bill goes to the other place. We have no objection to the amendments. They are largely technical and clarifying in nature. For example, they would ensure that the Bill operates as intended when a member of one of the affected pension schemes dies. I also accept that adding these amendments now will ensure that the Bill will start its scrutiny in the House of Commons with these points clarified, which we welcome. For these reasons, we are content with this group.
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Viscount Younger of Leckie (Con)My Lords, I will make a few very short closing remarks. I thank the noble Lords, Lord Davies and Lord Ponsonby, and the…
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Viscount Younger of Leckie (Con)Conservative
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My Lords, I will make a few very short closing remarks. I thank the noble Lords, Lord Davies and Lord Ponsonby, and the noble Baroness, Lady Janke, for their brief remarks. In particular, I thank the noble Lord, Lord Ponsonby, for his supportive remarks and his understanding—there is probably a better word to use—of what we needed to do for this group of amendments and the next one. I appreciate it. As I said in my opening remarks, the Bill deals with a complex and unprecedented issue. These amendments reflect the several months of continued work with the schemes, stakeholders and departments to check and recheck the Bill to ensure that it will offer a complete and effective remedy for members affected by the discrimination identified by the Court of Appeal. The noble Lord, Lord Davies, raised a good point about what might happen next with potential amendments in the Commons, but I reassure him that, as I outlined, this is a highly complex area and the Government are committed to ensuring that members in all relevant schemes receive an effective remedy. We will continue to work closely with stakeholders, including the pension schemes in scope, to consider whether any areas of the Bill require further clarification to ensure legal operability. I also took note of the points raised by the noble Lord, Lord Davies, concerning additional voluntary contributions and the cost control mechanism. The noble Baroness, Lady Janke, alluded to the fact that we will be addressing them in subsequent groups. I think it probably makes sense to do that, but I have taken note of the noble Lord’s questions, and I am sure he will raise these matters as the afternoon goes on.
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Viscount Younger of LeckieMy Lords, this second group consists of three technical areas of amendments. I reassure the House that my remarks will…
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Viscount Younger of LeckieConservative
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My Lords, this second group consists of three technical areas of amendments. I reassure the House that my remarks will be somewhat shorter than on the previous group. As before, I will set out the key themes in each area, rather than talking through the detail of each amendment. The three key themes these amendments relate to are: first, matters concerning voluntary contributions; secondly, flexibility in delivering the remedy in respect of judicial scheme members; and, thirdly, the closure of old schemes. Once again, I will be happy to turn to specific amendments if your Lordships have any questions they would like to raise. Before I turn to the first area of amendments, which relate to member voluntary contributions, I thank the noble Lord, Lord Davies of Brixton, to whom I am most grateful for raising this matter in Grand Committee, which has assisted the Government in developing these new amendments. I gave the noble Lord assurances in Grand Committee that the Government would consider how the Bill should provide for members who were prevented from making voluntary contributions to the legacy schemes as a result of the discrimination that arose, and I am pleased to be able to bring forward amendments to that effect now. First, these amendments insert new clauses so that scheme regulations may allow members to enter into remedial voluntary contributions arrangements where they would have done so had the discrimination not arisen. Additionally, the amendments ensure that information that must be provided to members includes information about remedial voluntary contribution arrangements as well as details of the eligibility criteria and the process for entering into those arrangements. Secondly, these amendments will amend Clause 18 to ensure that the provisions work correctly in relation to persons other than a member who may obtain rights in relation to a member’s voluntary contributions. Thirdly, the amendments clarify that, where compensation is paid to members of the judiciary representing an amount that was paid as voluntary contributions less the tax relief they received at the time, any rights that were associated with those contributions are extinguished. The amendments also clarify that, where the member is deceased, the compensation should be made to the member’s personal representatives. Finally, the amendments add a new clause to provide that no new arrangements to pay voluntary contributions may be entered into after 31 March 2022 in a legacy scheme. This reflects the fact that the legacy schemes will close on that date. However, any existing voluntary contributions arrangements that members may have entered prior to 1 April 2022 may continue. Additionally, this prohibition does not apply to the new clauses which permit members to enter into remedial voluntary contributions arrangements in the specific circumstances I have set out. Let me now turn to the second area of amendments in this group. These are technical amendments required to ensure the remedy can be applied most effectively in respect of judicial scheme members. Clause 65 defines the election period as a three-month period beginning with such date as is specified by the relevant authority and that the relevant authority may extend the election period in relation to a particular person, if they consider it just and equitable to do so. It is important that judges in scope of the remedy have enough time to make an informed decision regarding their scheme membership for the remedy period. Therefore, amendments are made to Clauses 65 and 60 to provide for further flexibility to respond to judges’ individual circumstances by allowing for there to be more than one election period, and for an information statement to be sent to each member before the start of their respective election period. Finally, I come to the third and final area in this group. This last area amends the valuations and governance framework for public service pension schemes to ensure that it operates correctly when old schemes established under the Public Service Pensions Act 2013, or its Northern Ireland equivalent, are closed and new schemes are established. In the present context, these amendments are most relevant to the reformed judicial pension scheme that is set to replace the 2015 scheme. However, the same issues will arise if, in future, other schemes are closed and new ones created. Schemes that are closed to future accrual do not require future stand-alone valuations. A new clause will ensure that these are no longer required and that an employer cost cap need not be set for the purpose of measuring changes in the costs of those schemes under the cost control mechanism. The new clause will also allow existing governance frameworks to be carried over from old schemes to new schemes. Additionally, an amendment to Clause 80 will ensure that the cost control mechanism can operate correctly by ensuring that the employer cost cap of a new scheme can be set after the regulations have been created. I hope the House will agree that, important though they are, all three sets of amendments I have outlined in this group make necessary technical changes to the existing legislation so as to ensure that the remedy can operate as intended. With that, I beg to move.
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Baroness Janke (LD)My Lords, I thank the Minister for responding to many of the issues that arose in Committee and welcome the additional…
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Baroness Janke (LD)Liberal Democrat
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My Lords, I thank the Minister for responding to many of the issues that arose in Committee and welcome the additional flexibility with regard to the voluntary contributions and the period when remedial contributions can be made. I would like to question the eligibility for voluntary contributions. One of the areas we discussed was about people—for example, with caring responsibilities—who would wish to make up their pension and in their legacy scheme would have been able to do that. Examples include women who have taken time out to look after children or people with caring responsibilities who have done the same. Will these members have the chance to make these remedial contributions to augment their pensions, as they would have been able to within the legacy scheme? Perhaps the Minister could clear that up for me.
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Lord Ponsonby of Shulbrede (Lab)My Lords, once again I thank the Minister for his explanation of this group. We are content for these changes to be mad…
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Lord Ponsonby of Shulbrede (Lab)Labour
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My Lords, once again I thank the Minister for his explanation of this group. We are content for these changes to be made to the Bill. I particularly welcome the provisions on voluntary contributions, which will now allow for a member to make voluntary contributions where they would have done, but did not due to the pension changes that led to the arising discrimination. This responds to a concern raised by pension schemes and by my noble friend Lord Davies in Committee, which was recognised by the Minister. I wonder whether the Minister can give us an assurance that more information will be forthcoming, over the Bill’s passage through the Commons, on how this will be provided for in practice. I also welcome the provision providing flexibility for judges over their election period and that every member must be provided with an information statement by the scheme before their election period starts. At later stages this afternoon we will come back to this question of how information and guidance are provided to members and how they will access support. That is in an amendment to be moved by the noble Baroness, Lady Janke. I am glad to see that this has been recognised, at least to some extent, in this group. We are happy to support these amendments.
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Viscount Younger of Leckie (Con)My Lords, once again, my closing remarks will be relatively brief. I thank the noble Baroness, Lady Janke, and the nobl…
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Viscount Younger of Leckie (Con)Conservative
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My Lords, once again, my closing remarks will be relatively brief. I thank the noble Baroness, Lady Janke, and the noble Lord, Lord Ponsonby, for their broad support for these amendments. As one or two questions were raised, I will give some more information on additional voluntary contributions, which may be helpful, particularly with regard to the question on eligibility raised by the noble Baroness. The proposed new clauses provide that scheme regulations may not permit a member to enter into such arrangements after one year from the day on which the member is provided with their remediable service statement, or their information statement in the case of the judiciary, or such later time as the scheme manager considers reasonable. The proposed new clauses will be subject to Treasury directions, which I understand we will be speaking about in a later group—under Clause 24 for Chapter 1 schemes and under Clause 58 for judicial schemes. This is set out in Amendments 45 and 90, and is consistent with the similar powers in Part 1 of the Bill. These directions will help to ensure that scheme regulations take a consistent approach, which is very important in providing members with remedial voluntary contribution arrangements. I hope that this offers some explanation but, again, bearing in mind the technical nature of the noble Baroness’s question, I will be keen to read Hansard and will write if further information is required.
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Lord Davies of Brixton (Lab)My Lords, this amendment is about what has been termed “the pension trap”. Much concern has been expressed about this p…
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Lord Davies of Brixton (Lab)Labour
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My Lords, this amendment is about what has been termed “the pension trap”. Much concern has been expressed about this phenomenon by different groups and members of different schemes, not least the Police Superintendents’ Association and the Fire Brigades Union. It is important to be clear that this issue affects all the major public service schemes. It is more salient in the uniformed service schemes as they previously had a much lower pension age, so the impact of the pension trap is more significant, but it runs through all the schemes. When you put two schemes together that work on significantly different bases, problems can arise that perhaps we should have spotted at an earlier stage of the discussions on the scheme. The key issue concerns where you combine schemes with different normal retirement ages in the legacy and new schemes respectively, and the impact of extending working lives in that situation. Extending working lives has been a theme of the reform of public service pensions, so we should perhaps have thought through this a little more clearly. I may have been a little to blame myself in my previous life. When the issue was first raised I was somewhat doubtful but, the more I have looked at it, the more I have come to appreciate that it is a real problem. The underlying problem is where the combined benefits, old and new, do not reflect the benefits that the members lose by having a later retirement age. They suffer a net loss. With most private sector schemes and the new state or public service schemes, if you defer your retirement, you get some credit: you lose a year’s worth of pension because you have decided to retire a year later, but the money that you have surrendered by doing so is used to increase the subsequent pension. Whether you take the pension at 65, 60 or 67, overall, the broad value of your benefits remains the same. This contrasts with the situation in most, if not all, of the significant public service schemes, where, if you defer your retirement, you simply lose that year’s benefit and receive no credit for it. The reason for this difference between public and private schemes is lost in the mists of time.
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Baroness Janke (LD)I thank the noble Lord, Lord Davies, for his explanation of the amendment. I know we had quite a lot of discussion abou…
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Baroness Janke (LD)Liberal Democrat
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I thank the noble Lord, Lord Davies, for his explanation of the amendment. I know we had quite a lot of discussion about this in Committee. My understanding of it in this specific case is how it affects members of the Police Superintendents’ Association. Previously, a number of years’ service entitled them to their pensions whereas the new scheme is age-related. As the noble Lord, Lord Davies, said, that prevents them being able either to retire early and still have their pension, as was guaranteed, or work later to augment their pension. This is an important issue, particularly in terms of public services such as the police, where undertakings were given and promises made. These were parts of agreements about pay levels and general conditions of service. So I believe the Government have some obligations here, and I very much hope that this can be looked at further as the scheme progresses and that it can be evaluated and solutions found. I hope the Minister can give us some clarification on that. I certainly support the spirit of the amendment and hope that we can resolve this in future.
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Lord Ponsonby of Shulbrede (Lab)My Lords, my noble friend Lord Davies has given a thorough explanation of this issue, which will impact members of cert…
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Lord Ponsonby of Shulbrede (Lab)Labour
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My Lords, my noble friend Lord Davies has given a thorough explanation of this issue, which will impact members of certain public service pension schemes. I simply echo the hope that the Government will look carefully at this issue before the Bill goes into its Commons stages. To reinforce the point made by the noble Baroness, Lady Janke, the Police Superintendents’ Association has reported that this issue is one of the most-raised questions in sessions that it is holding with its members, and it is trying to talk through the possible remedies and related pension issues as they affect police superintendents. This is an unintended consequence that has arisen due to the current complexities, rather than an intentional outcome of what the Government are seeking to do. With that in mind, could the Minister inform us, first, whether the Government have considered ways to remedy this issue, in which certain members will be caught, and, secondly, what ongoing consultation and engagement are the Government undertaking with those who are affected? I will be interested to hear the Minister’s response.
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Viscount Younger of Leckie (Con)My Lords, I thank the noble Lord, Lord Davies of Brixton, for raising this issue again today, and I thank other noble L…
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Viscount Younger of Leckie (Con)Conservative
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My Lords, I thank the noble Lord, Lord Davies of Brixton, for raising this issue again today, and I thank other noble Lords for their comments. Clause 21 provides the power for scheme managers to pay compensation for certain losses incurred by members. Compensation can be paid for losses that satisfy any of the three conditions set out in subsections (4) to (6) and are of a description specified in Treasury directions. It might be helpful for the House if I set out the background and purpose of the clause. I hope I can provide the clarifications that have been asked for by the noble Baroness and both noble Lords. The purpose of the clause is to confer power on scheme managers to make payments in relation to compensatable losses. This is an important element of the remedy provided by the Bill. The Government have set out to Parliament, in public announcements and to the courts that we will take steps to remedy the discrimination that occurred when transitional protection was provided to some members when the public pension schemes were reformed in 2015. That means taking steps to place members as far as possible back into the position where they would have been had the discrimination not occurred. Clause 21 provides for compensation in relation to losses incurred as a result of the discrimination or the retrospective remedy provided by the Bill, or in respect of certain tax losses. The clause allows for matters that are not directly remedied by other provisions of the Bill or by the intended scheme regulations to be put right. As I understand it, having listened carefully to the speech from the noble Lord, Lord Davies, the intended effect of his amendment is to compensate members who reach the required length of service to retire with full benefits in their legacy scheme before they reach the necessary age to retire with full benefits in their reformed scheme. The amendment appears to relate closely to representations made by police staff associations, which a number of speakers mentioned, regarding members of the 1987 and 2015 police pension schemes who reach 30 years of service in the legacy pension scheme before reaching minimum pension age in the reformed scheme. However, by referring to “full benefits” in the reformed pension scheme, the noble Lord’s amendment appears to go considerably beyond these representations and proposals, effectively requiring compensation for those below normal pension age, not minimum pension age, in the reformed scheme. I know that he raised the question of whether this applies to all public servants. Perhaps I may just gently put him right—I defer to his greater knowledge but I will put him right on this—that it does not. As implied by the reference to the required number of years in the amendment text, this issue arises for members of schemes where retirement on full benefits is based on length of service rather than age. The 1987 police pension scheme falls into that. Members of other public service pension schemes will often move from a scheme where the normal pension age is 60 to a scheme where the NPA is equal to state pension age. However, it is not quite the same issue as the normal pension age and a legacy scheme, for these members will be higher than the minimum pension age in their reformed scheme. I hope that offers a reasoned explanation. Turning to the police pension scheme, under the Bill all members in active service on 31 March 2022 will be moved into the reformed 2015 police pension scheme in respect of service from 1 April 2022 onwards. That is what is known as a “prospective remedy” to ensure that all active members are treated equally from that date onwards. I am grateful for the hard work and extraordinary dedication shown by police officers. The Government support the police and the important work that they do to protect the public, and recognise that they face changing demands from crime. The reformed police pension scheme is, rightly, one of the most generous pension schemes in the United Kingdom. Moreover, members with service under the 1987 police pension scheme are already afforded significant protections in the Bill, including by maintaining the final salary link of the 1987 scheme and the protection of weighted accrual. This means that accruals in the 1987 scheme will be calculated in relation to a member’s final salary when they retire or otherwise leave the police pension scheme of 2015 in the future, not their salary at the point when they leave the police pension scheme of 1987 on 31 March 2022. The improved accrual rate linked to length of service in the older scheme is also protected and will remain the same in relation to service in those legacy schemes. The Government have been considering the issues raised by the police representatives and this amendment carefully, including the question of whether there are viable policy mitigations. I want to answer the important point raised by the noble Lord, Lord Ponsonby, on engagement. The Home Office is also currently consulting on detailed regulations to implement the prospective McCloud remedy for the police pension scheme; I hope that provides some reassurance that this is an important matter. That includes communication as well. However, the Government must not take action that would be contrary to the Bill’s intention to remove the discrimination identified by the courts and to ensure that all members are treated equally from 1 April 2022 by accruing service in the reformed schemes, regardless of their age. It is important to stress that the Court of Appeal found in the McCloud and Sargeant cases in 2018 that the transitional protections offered under the PSPA 2013 amounted to unlawful discrimination against younger members, because they allowed older members to accrue service in the legacy schemes for longer because of their age. Accordingly, offering compensation to members depending on their age and resulting position relative to service length and normal pension age would risk perpetuating such unlawful discrimination through different means. This is an important point of clarification for the noble Lord, Lord Davies. I thank the noble Lord for bringing attention to this issue and reassure him that the Government have been considering the position of these members, including the viability of policy solutions such as the proposal submitted by police staff associations. However, careful consideration must be given to the need to avoid introducing new discrimination against other pension scheme members—I made this point earlier—and a broadly drafted amendment to the Bill risks doing just that. I therefore ask, with that rather full explanation, the noble Lord to withdraw his amendment.
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Lord Davies of Brixton (Lab)I thank the Minister for his detailed reply. At the appropriate time, I will indicate my intention to withdraw the amen…
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Lord Davies of Brixton (Lab)Labour
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I thank the Minister for his detailed reply. At the appropriate time, I will indicate my intention to withdraw the amendment. First, I want to say that the purpose and intention of the amendment—I never believed that it was complete in itself—was to prod the Government into taking the issue seriously. The problem arises in any scheme where, if you do not take your pension at the scheme pension age, you do not get any credit for giving up the pension that you lose by deferring your retirement. That is the underlying problem, and it occurs across the public sector. It is currently far more acute, as we have been told in detail by the Fire Brigades Union and the Police Superintendents’ Association. I have no doubt that the real solution to this issue lies in scheme-level discussions, but such discussions will take place only if the Government give an indication that they take this issue seriously and want the respective scheme advisory boards to discuss and address the issue and seek out practical solutions. Whether they can be funded, and the extent to which any solution would fall within the cost cap and so not incur substantial additional cost, would have to be addressed as part of those discussions. That is all I am asking for. I am grateful to the House for the opportunity to raise this issue. On that basis, I beg leave to withdraw the amendment.
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Lord Davies of Brixton (Lab)My Lords, I raised this issue at Second Reading in the context of questioning the use of directions. I believe that the…
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Lord Davies of Brixton (Lab)Labour
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My Lords, I raised this issue at Second Reading in the context of questioning the use of directions. I believe that there is a general issue here about the respective weight given to primary legislation, regulations subject to approval by one or both Houses, and directions, which are the decision of the Treasury. Clearly, there is a balance to be drawn here on the appropriate level of parliamentary scrutiny; it is a debate that we should have, but it is not one I propose to pursue any more in the context of this Bill. However, some concerns remain about issues that are being dealt with through directions which, I believe, should be subject to parliamentary scrutiny. In the context of this Bill, there are two issues of concern. The first is the decision that the cost of the remedy—that is, the remedy required to address the issue of age discrimination—should be counted as a member cost in the cost-control mechanism. The second issue is that, in that calculation, the costs of the remedy should be spread over a period of four years. This is beginning to verge on technical issues but, at heart, these are policy decisions, and ones that should be subject to parliamentary scrutiny. They go far beyond what have been described. This legislation amends the Public Service Pensions Act 2013, and there was a report on that legislation, looking at the directions, which said that the directions did not need parliamentary scrutiny because they were simply technical matters of actuarial practice. My argument today, on those two issues—and I am going to focus only on the issue of whether this is a “member cost”—is around whether this is a technical matter of actuarial practice or whether it is a policy decision that should be subject to parliamentary scrutiny. There is no doubt that the decision to make this a member cost will mean that members end up paying more money or receiving lower benefits. It will directly affect the benefits that they receive. The issue was raised in Committee, and the Minister at that stage maintained the position that “Treasury directions … exercise a particular power, rather than creating a new power”.—[Official Report, 11/10/2021; col. GC 353.] I would argue that the decision to make this a member cost as part of the cost-control mechanism goes beyond the exercise of a particular power and creates a new power, and hence it should be considered as regulations. This is a complicated issue, and, to understand it, you need to have a clear understanding of the purpose of the cost-control mechanism. It is not, as the Government have suggested, a mechanism for assessing the value of pensions; this is not something that directly affects the calculation of the contribution rate being paid for the scheme. It simply affects the cost-control mechanism, which is the trigger for deciding whether changes should be made to the scheme. The costs of the scheme are the costs of the scheme; whatever the benefits are, they are the costs of the scheme. This is a mechanism for deciding whether those benefits should be changed or, alternatively, whether contributions should be changed. It has always been accepted that there are certain elements in the calculation involved in the cost-control mechanism that are regarded as member costs that will impact on the cost-control mechanism—but there are also these other elements in the calculation that are employer costs, which do not impact on the cost-control mechanism. The issue has been discussed, and there have been government reports on what counts as a member cost or an employer cost, but they have never considered the issue of the cost of a remedy incurred by the Government’s own error. It was the Government’s mistake to have age discrimination in this scheme and, to address the Government’s mistake, there has to be a remedy. That remedy is the subject of this Bill. Should the cost of that remedy be a cost for the Government, who created the problem in the first place, or a member cost? The Government argue that members are receiving additional benefits and so it is clearly a member cost. This is an important issue and what I am arguing about now is not an ultimate answer—I have made my position clear; I think it should be an employer cost—but it is not an issue that should be addressed through directions; it should come before Parliament through regulations. Because of the nature of the regulations, they would probably be financial regulations and considered only by the House of Commons. That is effectively what I am arguing, and I have put down my amendment in order to raise this issue. To a certain extent, our deliberations here are not final, because this is the subject of extensive legal action. However, that is nothing to do with the argument today. The argument is technical; it is on the relatively narrow point of whether the cost of the remedy falls to be treated as an employer cost or as a member cost.
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Lord Hodgson of Astley Abbotts (Con)My Lords, I have not participated on this Bill before; indeed, I just want to pick up the point made by the noble Lord,…
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Lord Hodgson of Astley Abbotts (Con)Conservative
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My Lords, I have not participated on this Bill before; indeed, I just want to pick up the point made by the noble Lord, Lord Davies, about the way that more and more government actions are taken by subordinate legislation. I chair the Secondary Legislation Scrutiny Committee, and we produced a report last week entitled Government by Diktat. My noble friend Lord Blencathra, who chairs the parallel committee, the Delegated Powers and Regulatory Reform Committee, produced another report called Democracy Denied? We all know that secondary legislation it is not well scrutinised. It cannot be amended, and this House and indeed the other place are therefore reluctant to undertake what I call the nuclear option—we cannot amend a bit of it, so we have to reject the whole lot. The last time that happened there was a huge constitutional crisis, to which my noble friend Lord Strathclyde had to set up a committee to answer. However, we have moved from that unsatisfactory position to one where we now have guidance. Guidance may or may not form part of the regulations; sometimes it says that the guidance “must have regard to” the regulations. What does that mean? Does it mean “I thought about it and I did not want to follow it”, or does it mean “The court will decide, and you had better have a jolly good reason for not complying with it”. The point from the noble Lord, Lord Davies of Brixton, takes it further away from the control of this House. We have what is now tertiary legislation: directions and decisions made by bodies that are not answerable to Parliament but whose decisions and regulations are enforced and required to be obeyed by every single member of the population of this country. Whatever the rights and wrongs of the point from the noble Lord, Lord Davies—I am not in a position to judge—he raises a very important matter for the House, which needs to be debated and discussed. As we move to new ways of regulating and legislating, because our society is moving on faster than the rather stately pace of primary legislation, we need to find new and better ways of making sure that Parliament, as the legislature, is not subject to the creeping, increasing control of the Executive—the Government. My committee and my noble friend Lord Blencathra’s committee are pretty convinced that the situation needs seriously addressing here—and of course in the other place, which must lead the way on this—if we are to make sure that the balance, which has shifted, is put back in the right place and in the right form. The speech by the noble Lord, Lord Davies of Brixton, underlines some of the dangers that we are facing by direction, which is not good enough because it does not come before your Lordships’ House or indeed the other place but will nevertheless have a very significant impact for our fellow citizens.
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Baroness Janke (LD)My Lords, I again thank the noble Lord, Lord Davies, for his explanation and for raising these issues, as he did in Com…
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Baroness Janke (LD)Liberal Democrat
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My Lords, I again thank the noble Lord, Lord Davies, for his explanation and for raising these issues, as he did in Committee. I listened again with interest to the noble Lord, Lord Hodgson, as he has intervened in two Bills on the issue of secondary legislation. I am sure that many Members of this House would support his view that there is inadequate scrutiny of secondary legislation and that the House’s powers are so severely curtailed that it requires us to ask whether we adequately exercise our scrutiny of subsequent legislation as we do with primary legislation. As for the cost cap mechanism, I know that there was great criticism, both from the Public Accounts Committee and the National Audit Office, about the costs of the remedy and how they would be paid for by the members, whereas it was an error by government and it was certainly felt, as the noble Lord, Lord Davies, said, that it should be faced by government. However, the Government have certainly produced a more satisfactory cost cap mechanism, with a number of concessions relating to the future costs of the pensions. We welcome the new arrangements for payments for any breach of the cost cap or floor, which were to be paid for by the members of the new scheme, as we do the widening of the margin for material breach of the ceiling or floor. We also appreciated the new application of the economic test should the cost floor be breached. We feel that the Government have made some attempt to address criticisms of the cost cap mechanism and will follow with interest how that operates in future.
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Lord Ponsonby of Shulbrede (Lab)My Lords, I again pay tribute to my noble friend Lord Davies for his contribution and for setting out the range of conc…
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Lord Ponsonby of Shulbrede (Lab)Labour
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My Lords, I again pay tribute to my noble friend Lord Davies for his contribution and for setting out the range of concerns surrounding the cost-control mechanism and the inclusion of the remedy as a member cost. I recognise that this question is subject to ongoing legal action and once again put on record that we welcome the provisions in Clause 80, although, as the Minister is only too aware, it does not deal with the wider question of plans for the cost-control mechanism. Members of the House are not the first to raise questions over the Government’s plans. The cross-party Public Accounts Committee said: “HM Treasury should have foreseen the age discrimination issue that gave rise to the 2018 McCloud judgment, and putting things right will take many decades to resolve. HM Treasury wants members to pay to put this right—at an estimated cost of £17 billion—despite this being its own mistake.” That point was repeated by my noble friend Lord Davies and the noble Baroness, Lady Janke. I look forward to the Minister’s response on this issue but, before I finish, I want to echo one specific question. Am I right that there will be a number of members who will not benefit from the remedy but will be impacted by it if it is included as a member cost? I listened with interest to the noble Lord, Lord Hodgson of Astley Abbotts, on Parliament being subject to the creeping control of the Executive—I think that is the way he put it. He talked about examples of secondary legislation and indeed gave this as an example of tertiary legislation. I think a lot of us will have sympathy with what he said.
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Viscount Younger of Leckie (Con)My Lords, an amendment has been put forward to Clause 80 by the noble Lord, Lord Davies of Brixton, which concerns the…
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Viscount Younger of Leckie (Con)Conservative
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My Lords, an amendment has been put forward to Clause 80 by the noble Lord, Lord Davies of Brixton, which concerns the employer cost cap. The noble Lord seeks to amend this clause to prevent the increase in value of schemes associated with the McCloud remedy being accounted for in the cost-control element of the 2016 valuations. I thank the noble Lord for bringing this to the attention of the House and am grateful to him for his prior engagement on the policy. I can confirm that the Government have received pre-action protocol letters on behalf of some trade unions which have indicated that they may issue judicial review proceedings to challenge the Government’s decision to include the costs of remedy in the cost-control mechanism at the 2016 valuations. As the House will expect, and as the noble Lord, Lord Ponsonby, acknowledged, I cannot comment on the specifics of live or threatened litigation. I acknowledge and appreciate the support the noble Baroness, Lady Janke, has given in general to the changes we have made to the cost-control mechanism—but there is more I want to say. I will talk through the general background, to reassure the noble Lord, Lord Davies, of the reasons for the Government’s decision. I will start by commenting on the policy rationale, starting with amending directions. In Grand Committee, I brought to your Lordships’ attention that the Treasury had published amending directions on 7 October 2021 that will allow schemes to complete the cost-control element of the 2016 valuation process. These amending directions confirm that the increase in value of schemes associated with the McCloud remedy will be taken into account in the completion of the cost-control element of the 2016 valuations. The Government believe this is right, given that addressing the discrimination identified in the Court of Appeal’s judgment by giving members a choice of scheme benefits for the remedy period involves increasing the value of members’ pensions. The cost-control mechanism was designed to assess costs arising from a change in value of schemes to members. Failure to capture the value of the remedy could have meant that members’ benefits may have changed going forwards, based on an incomplete and inaccurate assessment of the value of these pension schemes. This would represent an unacceptable risk to taxpayers, contrary to the objectives of the mechanism. Turning to some specific detail on ceiling breaches, the Government have previously announced their intention to waive any ceiling breaches that arise from the 2016 valuations, and this is implemented by the current version of Clause 80. However, any floor breaches that occur will be honoured. This means that no member will see a reduction to their benefits as a result of the 2016 valuations. This decision, and the completion of the 2016 valuations, should provide certainty to scheme members over their benefits. I will attempt at this stage to answer the point raised by my noble friend Lord Hodgson of Astley Abbotts and the noble Lord, Lord Ponsonby, about the use of directions. The Government acknowledge the key interest of the House in the scrutiny of secondary and tertiary legislation. The DPRRC considered this Bill and chose not to bring forward any comments for the attention of the House. The Government have powers under Section 12 of the PSPA 2013 to set out in Her Majesty’s Treasury’s directions what costs must be taken into account as part of the cost-control valuations. More broadly, I acknowledge the points my noble friend made; I have no doubt that Hansard will be read and I will say simply that his points are noted. I will now say a few words about the amendment itself. The amendment seeks to amend the Treasury’s powers, set out in Section 12 of the Public Service Pensions Act 2013, to make directions which set the employer cost cap. Section 12 grants the Treasury a wide power to specify in directions which costs should be taken into account as part of the cost-control mechanism. The amendment put forward by the noble Lord seeks to amend subsection (4) by omitting paragraph (c). I understand that the noble Lord’s intention is to remove the Treasury’s power to specify that the costs of remedy, or any other costs associated with the legacy schemes, should be accounted for in the mechanism. This amendment may not have what I understand to be the noble Lord’s intended effect of preventing the increased value associated with the McCloud remedy from being included in the mechanism at the 2016 valuations. Subsection (4) sets out the type of costs that Treasury directions may specify for inclusion in the cost-control mechanism, but it is not intended to be an exhaustive list; rather, it provides some illustrative examples of how the wide power in subsection (3) may be exercised. I also note that the 2021 amending directions came into effect on 8 October 2021, as I mentioned earlier, under the existing powers. The noble Lord’s amendment as drafted would have no effect on the 2021 amending directions. I want to attempt to answer some questions that were raised by the noble Lord, Lord Davies, supported, I think, by the noble Baroness, Lady Janke. There was some debate about why members are being made to pay for, as they put it, mistakes made by the Government. When the cost-control mechanism was established, it was agreed that it would consider only costs that affect the value of a scheme to members. Addressing the discrimination identified in the McCloud and Sargeant judgments by giving members a choice of scheme benefits for the remedy period involves increasing the value of schemes to members. The costs associated with this should therefore be taken into account as part of the cost-control element of the 2016 valuations process. However, any ceiling breaches that occur will be waived, no member will see a reduction in benefits as a result of the 2016 valuations, and any floor breaches that occur will be honoured. The noble Lord, Lord Davies, asked when we will introduce amendments to reform the cost-control mechanism. I hope I can provide some reassurance by saying that the Government published our response to the consultation on the CCM on 4 October, we are currently working through our options and we will legislate for changes to the mechanism when parliamentary time allows. While a precise date has not been set—I am sorry I cannot give that date—the aim is to implement any changes in time for the 2020 valuations. As should now be clear, the Government have no intention of tabling an amendment in the House of Lords to implement these reforms. Instead, the package of amendments being introduced in this House are technical amendments that ensure the consistent application and legal operability of measures in the Bill. I hope that, with these explanations, I have provided the noble Lord, Lord Davies, in particular, with some helpful reassurances on the policy rationale and the powers used, and I ask him to withdraw his amendment.
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Lord Davies of Brixton (Lab)My Lords, at the appropriate time I will indicate that I will withdraw the amendment. I am prepared to accept the advic…
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Lord Davies of Brixton (Lab)Labour
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My Lords, at the appropriate time I will indicate that I will withdraw the amendment. I am prepared to accept the advice that it does not actually achieve what I would like to achieve, and that the retrospective factor needs to be taken into account. But I would just like to highlight an issue mentioned by my noble friend Lord Ponsonby. What the decision to make this a member cost means is that it will impact on those members who gain no benefit from the remedy. The remedy is not arbitrary, but there are broad patterns in who benefits from the remedy, and large numbers of members do not benefit from the remedy but will be affected by the inclusion of this as a member cost in the cost-control mechanism. The Government have suggested that they chose the four-year period within the cost-control mechanism for undertaking the calculation because they did not want to impact on future members of the scheme who gain no benefit from the remedy, but exactly the same problem applies to many current members of the scheme who will be active members during the relevant four-year period. To me, that sounds like an argument that the remedy should not be treated as a member cost, because of its inequitable impact. I am very grateful to the noble Lord, Lord Hodgson, for his remarks. This is an issue that I have perhaps said more about than I originally intended, but I very much hope it will be taken seriously. What comes to me from it is that it is not easy to say what is or is not suitable to be dealt with through particular types of legislation. The issue is the impact it has, not its precise formulation—and making it a member cost has a substantial impact and so should get the appropriate level of consideration. I note what the Minister said about the amendments to the cost-control mechanism and that he did not rule out the possibility that it would be added to this Bill during its Commons stages. I am a bit concerned about the idea of debating such significant changes in the context of the ping-pong process, so maybe he could give some sort of reassurance on that. But subject to those points, I beg leave to withdraw my amendment.
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Baroness Janke (LD)My Lords, as we have heard today and previously, the implementation of this Bill is likely to be extremely challenging,…
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Baroness Janke (LD)Liberal Democrat
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My Lords, as we have heard today and previously, the implementation of this Bill is likely to be extremely challenging, including, I would say, for scheme members. Millions of public sector workers will be affected by this scheme, and the process will involve unpicking, administering and communicating with members. I believe that members will need a lot of help to understand what is happening and to make good decisions. It seems to me essential that we should include a requirement on the Government to plan and resource support systems to enable members to make the best choices, and to provide the same to trustees and pension schemes. Time is short, so I will not go into great detail, but I would like to hear how the Government plan to support and advise the millions of scheme members who will be faced with life-changing choices as a result of the changes that have come forward through this Bill.
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Lord Hope of Craighead (CB)My Lords, I support this amendment. I raised the issue in my speech at Second Reading because I look back with gratitud…
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Lord Hope of Craighead (CB)Crossbench
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My Lords, I support this amendment. I raised the issue in my speech at Second Reading because I look back with gratitude to the guidance I received shortly before I retired as to the choices I had to make under the judicial pension schemes. I think my position was relatively simple compared with the position we have now, because there were two clearly expressed schemes, the guidance I was given was intelligible and I was happy to follow it. Of course, I was aware—as I am sure everybody would be under this new arrangement—that the choice I made was going to be irrevocable, and I had to be very careful to make the correct choice. I cannot claim to have studied the impact of this Bill—and, indeed, all the amendments that have just come to the House today—but my impression is that the situation is a good deal more complicated than the one I had to deal with when I was on the point of retirement. There is a great deal of force in this amendment, and I am delighted that it has been brought back on Report so that we can have a full response from the Minister.
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Lord Ponsonby of Shulbrede (Lab)My Lords, I pay tribute to the noble Baroness, Lady Janke, for tabling and introducing this amendment, to which I have…
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Lord Ponsonby of Shulbrede (Lab)Labour
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My Lords, I pay tribute to the noble Baroness, Lady Janke, for tabling and introducing this amendment, to which I have added my name. I also thank the noble and learned Lord, Lord Hope, for giving it his support. This is the issue which I think is really at the centre of deliberations on this Bill and planning for the introduction of the remedy: how information and advice are going to be provided to members. In Committee, the Minister agreed with the importance of this issue. He said: “The Government recognise the importance of providing members with clear, accessible and accurate information.”—[Official Report, 11/10/21; col. 357GC.] The Bill provides for remedial statements to be provided to all members, which in itself is welcome. Before the Bill reaches the House of Commons, I ask the Minister to consider carefully what practical, accessible and time-sensitive help there will be for a member who is struggling to understand the statement and the complex background which precedes it. As I asked in Committee, if a person has no idea what their statement means, how their pension has been affected and when they are likely to be required to make a decision, who do they call? Where do they go for practical advice? The amendment also raises the question of compensation. The Bill provides for applications to be made for compensation, but what information will be circulated to ensure that impacted members are aware that they are eligible to apply? These are the questions we have to get right to ensure that members can confidently navigate the remedy, which, not to remind the Minister of this too often, was due to a government error. I hope that the Minister can give a commitment to take this away and to look at what more could be done in the Bill to ensure that members are given first-class accessible support in navigating this complex issue.
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Viscount Younger of Leckie (Con)My Lords, I am very pleased to be able to debate this important matter. As the noble and learned Lord, Lord Hope, and t…
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Viscount Younger of Leckie (Con)Conservative
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My Lords, I am very pleased to be able to debate this important matter. As the noble and learned Lord, Lord Hope, and the noble Lord, Lord Ponsonby, said, these matters must be covered and the Government must be sure that enough information is given to pensioners to make the necessary decisions. I hope my remarks will give the reassurances on this. As I set out in Grand Committee, providing sufficient guidance for members to make informed decisions regarding their pensions is, of course, of utmost importance. Indeed, this Bill implements a deferred choice for members so that they know what their pension options are at the time they make their decision. I acknowledge the point that the noble and learned Lord, Lord Hope, made about the complexity of this. I hope he will agree that we have taken this into account. There are a number of problems with the approach proposed in the amendment, which would require the Government to publish guidance within six months of the Bill being passed. There are a significant number of schemes within the Bill’s scope, and scheme regulations will need to be developed, consulted on and implemented in each scheme. The Bill provides that the remedy must be implemented by October 2023, but that is just the beginning of the process. Decisions will be taken in relation to pensioner and deceased members from that time, but active and deferred members will be making their deferred choice over many years into the future. It would not be possible to produce guidance within six months in relation to regulations that may not have been made, nor useful to report on the effectiveness of such guidance before the remedy is implemented. Leaving aside the detail of the amendment, allow me to explain why the Government do not consider the amendment necessary. On the question raised by the noble Lord, Lord Ponsonby, on the support that will be given to members, I assure him that members will be provided with information about their choice and will be able to understand the options available to them. In most cases it will be straightforward for a member to determine which benefits they wish to receive, but I also reassure noble Lords that schemes are developing tools to support members in planning for their retirement. Members will have access to up-to-date information about their benefits and be able to understand what each option will be worth at their planned retirement age. Turning to the detail, as I set out in Grand Committee, the Bill already provides that scheme regulations must provide for each member to be provided with remediable service statements containing personalised information about the benefits available to them. That information will include details of the benefits currently available to them under the legacy scheme, and the benefits available to them if they elect to receive new scheme benefits or to opt for a period of opted-out service to be reinstated. For active members, statements will be provided on an annual basis, enabling members to see how the two sets of benefits compare throughout their career. For deferred members, a one-off statement will be provided initially, with up to one further statement per year on request. For pensioner members, and in respect of deceased members, a one-off statement will be provided for such members or their relations to make an immediate choice. However, remediable service statements are only part of the information and support that the schemes provide to members. The Public Service Pensions Act 2013 will continue to require schemes to provide members with information about their pension benefits, not just those relating to remediable service. In due course, members will also see information about their pensions through the pensions dashboard, which the House will be familiar with. Schemes already provide members with a wealth of guidance, support and information, and existing legislation already requires them to inform members about changes to pension schemes. The noble Baroness makes an important point about members planning for retirement, and legacy and reformed schemes often have different retirement ages attached to them. The schemes have implemented significant changes before and are experience and adept at providing their members with support and guidance. The fact is that, across their careers, members will often have a range of different pension entitlements, with different rules and benefits payable at different ages. Therefore, these complexities are not unique to the remedy under the Bill, and the schemes already provide members with tools and support to help them to understand their options and plan for their retirement. The Government Actuary’s Department is developing tools that will allow members to see exactly how their entitlements change, depending on when they access their benefits. Again, this is not specific to the remedy, but such tools will help members to understand how decisions about when to retire interact with their scheme benefits. The amendment introduced would also require members to be notified if they are entitled to compensation, but it is already the Government’s intention that, in most cases, compensation will be automatic—for example, in relation to overpaid tax. In all cases, schemes will set out the process for claiming compensation in scheme regulations and inform members of this. On tax guidance, schemes are already required to provide members, where appropriate, with the relevant information to complete their tax return, and this information will be updated and provided to the member, where their tax position changes. However, where there is an interaction with the tax system, the Government recognise that there will need to be further guidance to complement existing HMRC guidance and scheme processes that already provide the required information to complete a self-assessment return. That was a rather long-winded response, but I hope that I have reassured the House once again that the Bill, existing legislation, the schemes’ existing processes and the Government’s intentions for implementing the remedy already combine to provide for all the information required for members to make the necessary informed decisions. With that, I ask the noble Baroness to withdraw her amendment.
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Baroness Janke (LD)My Lords, I thank all noble Lords who have contributed to the discussion on this amendment, particularly the noble Lord…
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Baroness Janke (LD)Liberal Democrat
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My Lords, I thank all noble Lords who have contributed to the discussion on this amendment, particularly the noble Lord, Lord Ponsonby, and the noble and learned Lord, Lord Hope. I also thank the Minister for his clarification of the situation, as defined in the Bill. Of course the remediable service statements will help, but the changes are taking place over such a short time and are on such a scale that it seems to me that there needs to be some form of helpline. I do not know whether the pensions dashboard could accommodate one; this might be something that the Government could look into. I ask that the implementation of these measures be closely monitored and that, should the workload and the volume of change give members a challenge in the choices that they have to make, support may perhaps be provided at a later stage. Having said that, I beg leave to withdraw the amendment.
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Lord Ponsonby of Shulbrede (Lab)My Lords, I will speak on the group of amendments consequential on Amendment 126. We have been talking about complex ma…
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Lord Ponsonby of Shulbrede (Lab)Labour
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My Lords, I will speak on the group of amendments consequential on Amendment 126. We have been talking about complex matters to do with public sector pensions, but this is a simple amendment that I will seek to explain to the House. I open by thanking the noble and learned Lord, Lord Etherton, and the noble and learned Baroness, Lady Hallett, for supporting this amendment. I look forward to the contribution later from the noble and learned Lord, Lord Etherton.
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Lord Etherton (CB)My Lords, I have joined in this amendment and I support it and the other amendments in the group, as I have previously…
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Lord Etherton (CB)Crossbench
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My Lords, I have joined in this amendment and I support it and the other amendments in the group, as I have previously with similar amendments by the noble Lord, Lord Ponsonby, because of the potentially severe adverse impact on diversity in our most senior courts, especially the Court of Appeal and the Supreme Court. While all judges are critical to the administration of justice, the most senior courts are the courts that send the clearest message to our own nation and to other countries about whether we value diversity in those who administer the law. One must remember that the members of the most senior courts also provide the role models that are so important in encouraging and inspiring others. We do not have a diverse senior judiciary. Although some progress has been made, particularly in the last 10 years, with the recruitment of women, there is an unacceptable and embarrassing lack of people of colour who are senior judges. There are no black and minority ethnic justices in the Supreme Court, and never have been. Just two of the 12 Supreme Court justices are women, one of whom is about to retire. Out of a maximum of 39 judges of the Court of Appeal, there is one judge from a minority ethnic background and only 10 women. Out of a maximum of 108 judges of the High Court, only five are from a minority ethnic background. There can be no doubt that an increase in the age of retirement from 70 to 75 in one go will have a severely adverse effect on inclusion and diversity in our most senior courts. It will diminish, almost to a vanishing point, opportunities for appointment and advancement for a number of years. That is why, as the noble Lord, Lord Ponsonby, has pointed out, all the most senior judges were in favour of an increase in the judicial MRA to 72 rather than 75. My noble and learned friend Lady Hallett, who spoke in Committee but is unable to be here today, has added her name to the amendment. She chaired the diversity committee of the Judges’ Council until 2019 and was a member of the judicial diversity forum. She said: “It is impossible to improve the diversity of the Bench significantly … unless there is a constant flow of new recruits”.—[Official Report, 11/10/21; col. GC 374.] That is equally true of advancement within the higher courts, from the High Court to the Court of Appeal and ultimately to the Supreme Court. As she said, raising the MRA of the judges is bound to restrict the number of vacant posts. The point, one would have thought, is self-evident, and it is borne out by the facts. As I have said, one of the two women justices of the Supreme Court will shortly retire. If the Bill is enacted with an MRA of 75, it will be a number of years before any further vacancy will arise. There is no evidence of a pattern of early retirement of justices of the Supreme Court. Of the nine justices who have retired in the last five years, eight continued until the MRA. As I have said before during the passage of the Bill, so far as concerns the Court of Appeal, the average age of judges is just under 64. This means that, potentially, if the MRA is raised to 75, there will be very few vacancies for a further 11 years. Of the 13 judges who retired from the Court of Appeal in the past two years or so, over 70% stayed until the current MRA of 70. The best evidence that I have been able to obtain is that 90% of those due to retire in the next three years will go beyond 70 if permitted. How, then, will it be possible for those minority ethnic judges in the High Court to progress to the Court of Appeal, let alone to the Supreme Court? The short answer is that it will be highly unlikely. The Government have said that raising the MRA to 75 will increase diversity and the attractiveness generally of applying for judicial office, because it will enable potential applicants to work for longer before seeking judicial appointment. In Committee, my noble and learned friend Lady Hallett said that she had spoken to literally hundreds of potential applicants, including women and BAME lawyers, over the years, and had never once heard an argument that the MRA of 70 was a factor in not applying for the Bench. The Government also say that, in their pre-legislative consultation, a majority of women and BAME groups opted for 75. I do not accept for one moment that, if such groups had been aware of the potentially adverse impact of the MRA on their appointment to the higher courts and on promotion within those courts, they would have endorsed 75. It has been said by one noble Lord who supports the proposed rise in the MRA to 75 that this is a once in a generation opportunity. Again, I do not accept for a moment that, if and when an increase above 72 is thought desirable, the Government would not readily find a suitable legislative vehicle. In choosing to prolong to 75 the judicial careers of those currently in office, to the disadvantage of underrepresented groups, especially those who are black and from ethnic minorities, the Government have preferred exclusivity to inclusivity. This is out of touch with social attitudes within our wider society, and indeed those of other European countries and the United States. The judiciary is not excused from the call of so many for greater fairness, equality of opportunity and advancement for people of colour and other underrepresented groups within our society. The statutory public sector equality duty, which had its origins in legislation that followed the Stephen Lawrence inquiry, is now to be found in Section 149 of the Equality Act 2010. Subject to certain exceptions, it requires public authorities, in the exercise of their functions, to have due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic—which includes race and sex—and persons who do not share it. The Act states that a person who is not a public authority as defined in the Act, but who nevertheless exercises public functions, must also have due regard to those matters. Raising the MRA to 75 is inconsistent with such a duty, or at least its objective and underlying ethos. The House should not endanger its reputation by accepting the increase to 75. To do so would lay it open to the criticism that it is out of touch in preferring to prolong the status quo, rather than enhancing equality of opportunity and inclusivity; in preferring age and standing over fairness and greater participation in our judiciary of all groups within our society, whatever their background, ethnicity, sex or gender. I urge the House to endorse the amendment of the noble Lord, Lord Ponsonby.
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Lord Woolf (CB)My Lords, it is a pleasure to follow my noble and learned friend Lord Etherton, in this debate, but it was of great con…
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Lord Woolf (CB)Crossbench
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My Lords, it is a pleasure to follow my noble and learned friend Lord Etherton, in this debate, but it was of great concern to hear what the noble Lord, Lord Ponsonby, said in his remarks. I am hugely impressed by the other names that have been supporting the suggestion that the age should be raised to 72 rather than 75, as the Government have proposed. I have the advantage that the noble Lord, Lord Ponsonby, perhaps has not—not yet, at any rate—of being considerably older than 75. I address the House on the basis of what I have learned during the period that I have been a judge and a former judge. I am absolutely committed, as, I am sure, are colleagues, to the need to have a judiciary that is as diverse as possible, to persuade the public that they can continue to have the faith in the judiciary that they have had up to now, and if all the evidence is looked at, I am convinced that the fears so eloquently described by my noble and learned friend Lord Etherton and the noble Lord, Lord Ponsonby, are unrealistic. They leave out of account another very important issue which, I suggest, is realistic. Unfortunately, the evidence is that the change made 27 years ago to reduce the age from 75 to 70 produced a situation that was very dangerous to the judiciary’s standing. The most senior posts—the posts that should be most active and attractive to applicants—were not being taken up. There was a risk that we did not have the quality of applicant for those posts, which I am sure both previous speakers would agree is critical. Above all, the very best people available should be appointed to the most senior judicial posts of this country. We have, fortunately, international standing as a judiciary because of its quality. I venture to suggest that advancement applies not only to the more junior judiciary but, above all, to the most senior judges in this country, who, when they retire, are offered all sorts of opportunities to serve in a judicial capacity elsewhere, where they recognise the quality of our judiciary. The most telling evidence on this important and difficult question is the fact that now, for 27 years, we have had the reduction in the retirement age of the judiciary not to 72 but to 70. Attention must be paid to all the views expressed by colleagues with whom I served and whom I hold in regard. Surely the diversity in our judiciary that they and I desire would have been fulfilled in those 27 years. The fact is that the lamentable situation today is that we still do not have sufficient numbers in the two grades of the judiciary which have been referred to in argument. My conclusion is that there is a real difficulty in getting the very best judges by changing the age to 72. There is a danger which is supported by evidence. There is no evidence to suggest that anyone else would apply if the age up to which they could retire was 72. Unfortunately, the people we wish to apply who currently support our position in respect of diversity do not see it as their chosen career at that stage. I say to the House that the Government are right. The evidence from their consultation supports what I say, and that is what we should do—not adopt a compromise that serves no particular purpose.
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Viscount Hailsham (Con)I declare an interest: I sit as a legal assessor for regulatory bodies, and I am very nearly 77—and therefore significa…
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Viscount Hailsham (Con)Conservative
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I declare an interest: I sit as a legal assessor for regulatory bodies, and I am very nearly 77—and therefore significantly older than the age of 72 proposed by the noble Lord, Lord Ponsonby. There are many other legal assessors of my sort of age sitting on regulatory authorities. I know full well that we are talking about judges, not legal assessors, but the principle is very much the same. If you were to say to legal assessors, “You cannot serve beyond 72”, you would lose an awful lot of quality which is now available to those regulatory authorities. I believe that the same is also true of the courts. I think judges should be able to sit until 75.
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Lord Brown of Eaton-under-Heywood (CB)My Lords, I join those who have indicated that they fully support Part 3 of the Bill and would raise the retiring age f…
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Lord Brown of Eaton-under-Heywood (CB)Crossbench
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My Lords, I join those who have indicated that they fully support Part 3 of the Bill and would raise the retiring age for judges—or rather return it to where it was 27 or 28 years ago—to 75, which it was for nine years of my own time on the Bench. I should declare that I too am well beyond the age when such as the noble Lord, Lord Ponsonby, might be having a discreet word with me. I point out that this provision is fully supported by—as I understand it from Second Reading—the noble and learned Lord, Lord Mackay of Clashfern, who originally lowered the age to 70. He recognises that, all these years on, frankly, 75 year-olds now are a good deal younger than the 70 year-olds of those days past. I suggest that the most important consideration is really that of judicial recruitment, which is still proving extremely difficult. The imperative surely is to get the most able people on to the Bench, whether they be men or women, whether they be gay, trans or straight, and whether they be young or old. The fact is that most cases are decided by a single judge. It is no good having the most wonderful judge trying the case in the next court if your judge is perhaps rather an indifferent one. So it is too with courts of three, five, seven or whatever. Of course diversity is a highly desirable objective; obviously, public confidence in the justice system overall is enhanced if more people see themselves represented among the judiciary. In a three-judge, five-judge or seven-judge court, the wider the diversity of judges—including, of course, more women—the likelier the court is to bring to bear a wider experience and judgment on the questions. But I suggest that the argument in favour of 72 rather than 75 being supportive of diversity is, frankly, somewhat speculative; certainly, it is not sufficiently clear, I suggest, to justify sacrificing the goal of individual excellence on the altar of supposed greater diversity. Getting the best candidates to apply and appointing them on merit has to be the cardinal rule. As to that, raising the MRA to 75 is, to my mind, assuredly going to assist in the recruitment of the ablest candidates, and I suggest that is so equally of women candidates as of male ones. First, it becomes more attractive because it is viable to take the job rather later in one’s career than at present. It gives candidates, male and female, longer to pursue whatever their initial career has been—it may have been in academe or in a range of areas on the borders of the law. It certainly gives practitioners a longer working life in which they can earn more than we all recognise they are going to be earning on the Bench. Secondly, it gives candidates the option—it is not compulsory; they do not have to serve until 75—of being employed, useful and busy, as most of us would wish to be, for longer and later in their lives. Most of us do not actually want to be forced into compulsory retirement at 70—or, for that matter, at 72. Thirdly, not only does a retirement age of 75 provide a yet better incentive than 72 for encouraging the best applicants to apply but it serves the public good. It retains supposedly skilled and experienced judges for that much longer. Despite what the noble Lord, Lord Ponsonby, suggests, it is surely not to be supposed that judges suffer a significant and noticeable failing in their abilities between the ages of 72 and 75 sufficient to draw the line at 72. It must therefore be in all our interests to keep these judges working, if they wish to, for that much longer. Finally, I add as a footnote that it will save the taxpayer the need to pay these reluctantly retired judges a judicial pension for those three years for doing nothing.
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Lord Hope of Craighead (CB)My Lords, I too believe that the Government have made the right choice in going to 75 in one go, as my noble and learne…
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Lord Hope of Craighead (CB)Crossbench
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My Lords, I too believe that the Government have made the right choice in going to 75 in one go, as my noble and learned friend Lord Etherton put it. We have to bear in mind that what is being suggested is a maximum; I think my noble and learned friend Lord Brown was making that point in passing in what he was saying a moment or two ago. I am not sure that the examples that my noble and learned friend Lord Etherton gave of people going on until 70 is a very sound guide as to how people will behave if the age is raised to 75, for the very particular reason that a factor that someone has to bear in mind in choosing the age of retirement is whether he has served long enough to earn the full judicial pension. In my day, you had to serve for 15 years; now, you have to serve for 20. For those who have gone on to the Bench in their early 50s, the age of 70 does not give them long enough. When they reach the time when they have achieved that, they may well take the decision to go then, rather than going on for the extra few years, because they have actually earned their full pension. So we are, to a degree, in an area of speculation. We are having to consider human behaviour and how people will behave in view of the two choices of age that we are being given. We are also contemplating human behaviour in the problem of diversity. I pay tribute to what my noble and learned friend Lord Etherton was saying about the need to increase diversity at all levels on the Bench. I had the responsibility for a while, as Deputy President of the Supreme Court, of being on a commission considering applicants for the position of justice. One of the issues that concerned us at the time was the lack of diversity in the applicants coming before us—a point that I think has been hinted at by my noble and learned friend Lord Brown of Eaton-under-Heywood. Again, we are trying to speculate about human behaviour. There is an immense amount to be said for the diversity element, but I do not think one can be sure that choosing 75 instead of 72 is going to be as damaging as has been suggested. As for the in-one-go point, I think my noble and learned friend Lord Etherton was referring to me when he mentioned someone who said at Second Reading that the opportunity to legislate on this issue comes quite seldom. I would be concerned, if we were to settle on 72 this time, as to when one would ever get back to the age of 75. As it happens, the Bill has enormous importance behind it because of the need to deal with pensions, which is a pressing issue. It has been possible to bring in the retirement age element and other parts of the Bill because the Bill is already there and the issue fits quite neatly with its broad aim and subject matter. How soon could we be sure that we could ever get back to this issue? For that reason too, the in-one-go point has a lot to commend it. There is even more to be said for the points made by my noble and learned friends and the point that we are dealing here with an element of speculation, since we are setting a maximum age, not a compulsory one, and it will have the benefits that have been referred to. I believe the Government have made absolutely the right choice here.
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Lord Mackay of Clashfern (Con)My Lords, I am in the rather unusual position of having brought the judicial retirement age down, all those years ago,…
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Lord Mackay of Clashfern (Con)Conservative
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My Lords, I am in the rather unusual position of having brought the judicial retirement age down, all those years ago, to 70 from 75. Your Lordships will remember that 75 was a fairly recent innovation because, originally, judges were appointed for life, and if they did not care for resignation, that sometimes meant fairly long periods in office. I am very given to wishing for diversity on the Bench, and I realise what the authorities responsible for appointments have done over the past few years. I do not think the noble Lord, Lord Ponsonby, or the noble and learned Lord, Lord Etherton, can be sure that if they get 72 instead of 75 there will be an increase in diversity on the Bench. I had a great deal of experience—it is a long time ago—of trying to work with the ethnic minorities to improve their chances of getting to the top. Indeed, the death of one of those appointments—Mr Kadri, the first Muslim Silk who originated from Pakistan—was reported just the other day. During my time in office, I struggled to bring up the standards of ethnic minorities at the Bar because I felt that was the way to build up a chance of diversity. One of the difficulties in doing that was getting the arrangements needed for that purpose. I was of the view, and am still, that the best chance for ethnic minorities is not Chambers that are entirely of an ethnic minority but diverse Chambers with people from different backgrounds. That has happened to a considerable extent in recent times. It has produced some ethnic-minority members on the Bench, although nothing like as many as I would have liked. I am convinced that the situation is very different now from what it was 27 years ago, as the noble Lord, Lord Ponsonby, said. Just after the Supreme Court was set up, the noble and learned Lord, Lord Irvine of Lairg, and I wrote to the then Lord Chancellor suggesting that the age limit for Supreme Court judges should be raised to 75 from 70 to accommodate for a reasonable length of time some of those who were there and had the potential to be very good examples of service in the Supreme Court. I am not sure that diversity has necessarily increased very much since then. It is perhaps worth my commenting that the President of the Supreme Court and the Deputy President of the Supreme Court are from Scotland. That is a very important move, although it is not in the way of diversity. It shows that those making the appointments are doing their best to secure the best quality they can at this time. However, it is important to do everything we can to raise the quality of those who are thinking of going to the Bench. I do not know on what basis the noble Lord, Lord Ponsonby, and the noble and learned Lord, Lord Etherton, whose experience and position is a matter of great importance so far as I am concerned, know that if this is left at 72 there will be greater diversity than now. The people making appointments are as keen on diversity as we are, but they find it difficult in the context in which they are working to bring it forward. I do not believe that it is at all likely that 72 will be more fruitful in that respect than 75. There is no doubt in my mind that going to 75 will increase the possibility of people in senior positions at the Bar taking the appointment. That is one of the things that I realised. The reason is simply that, as has been pointed out, the pension is important in these situations. People who are at the top of the profession are rather unwilling to take a judicial appointment unless they have a pension that encourages them to leave the Bar, with what they are making. I support this move to 75 very strongly, although I know it reverses what I did all those years ago.
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Lord Thomas of Cwmgiedd (CB)My Lords, it is an enormous privilege and pleasure to be able to follow the noble and learned Lord, Lord Mackay, becaus…
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Lord Thomas of Cwmgiedd (CB)Crossbench
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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.
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Baroness Janke (LD)My Lords, the debate this afternoon has been passionate and enlightening. Here is a quote from Second Reading: “I think…
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Baroness Janke (LD)Liberal Democrat
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My Lords, the debate this afternoon has been passionate and enlightening. Here is a quote from Second Reading: “I think that everybody in this House would say that it is important that our senior judges in the Court of Appeal and the Supreme Court reflect the society that we live in if they are to be respected and seen as part of our current era. At the moment, they do not.”—[Official Report, 7/9/21; col. 792.] It is also a great pity that the Government have not conducted impact assessments with benchmarking of different ages, but they have not. In the absence of impact assessments, I look to the arguments that we have heard. The point has been admirably made: unless there are vacancies, there will not be opportunities for diversity. We have heard arguments as to why we should not do this; for example—an argument we often hear when there is talk of promoting diversity—that somehow quality will suffer. I have heard those arguments for the last 40 years. Whether scientists, engineers or Members of Parliament, we now see women operating in spheres that were occupied only by men in the past, with no diminution in quality at all. In fact, the contrary has been the case. I very much respect what was said by the noble and learned Lord, Lord Mackay, with his experience and knowledge. He mentioned context, however, and, the more we listen to this debate, the more we realise that it is the context that has to change. The present context does not promote diversity at all; I would venture to suggest that, to create greater diversity, the circumstances need to change. This amendment seems to me to promote the kind of change that we need. We heard from the noble and learned Lord, Lord Etherton, that the position of women has improved and continues to improve slowly, but—to use his words—that the embarrassing position as far as minority ethnic judges is concerned is something we all ought to be ashamed of. The cause of diversity is one that we in this House, as well as people from all walks of life, welcome. Everybody here wants to see a more diverse judiciary. Whatever our own situation, and whether or not we believe, as some in this Chamber clearly do, that somehow the courts will not attract the very best people to be judges, the cause of diversity is absolutely self-explanatory and vital if the people of the country are to be able to respect those in eminent positions. From what I have heard today and in Committee, I would say that the cause of diversity is best served by this amendment. We on this side will support it.
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Viscount Younger of Leckie (Con)My Lords, I start by thanking all noble Lords for their contributions during this lively debate. I also thank the noble…
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Viscount Younger of Leckie (Con)Conservative
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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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Lord Ponsonby of Shulbrede (Lab)My Lords, let me provide some context to the figures that the noble Viscount has given. He said that there are 12,000 m…
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Lord Ponsonby of Shulbrede (Lab)Labour
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My Lords, let me provide some context to the figures that the noble Viscount has given. He said that there are 12,000 magistrates in England and Wales today, but when I became a magistrate 14 years ago there were 30,000, so there has been a managed decline of the magistracy. I support, of course, the recruitment programme, which is targeting and, as he said, marketing to try to get greater diversity through that process. The simple point is that you cannot run away from diversity. There is an absolute imperative to increase diversity within the whole of the judiciary. It is not good enough just to wring your hands and say, “It’s all very difficult”. It has been very difficult for decades and the situation has not improved. The maths is very simple; we heard the maths from the noble and learned Lord, Lord Etherton, who also quoted the noble and learned Baroness, Lady Hallett, who is in a particular position to know. There need to be vacancies for people to progress through the system. It is a simple argument, which I do not think a number of noble Lords fully took on board. When I introduced this debate, I made a simple example of my role as a youth magistrate and how I felt that I was moving further and further away from the youths I was judging. I gave the example that I am older than the grandfathers of nearly all the youths I am judging. Not one noble and learned Lord addressed that point. They addressed points about the difficulties of recruitment and the ins and outs of the pension scheme, but not the central issue that I tried to raise about the judiciary being further away from the people who they are judging. I argue that we need to have some level of connection to reach fair judgments. My amendment is a modest compromise. It says that 75 is too far and that 72 is a better age to see how it goes. I acknowledge that people are working and living longer—I made those points when I introduced the amendment—but I say to the noble Viscount and to a number of contributors to this important debate that I am not convinced. I wish to test the opinion of the House.
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The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)We shall now have a short interval for a change of personnel before we move on to the next business.
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The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)Labour
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We shall now have a short interval for a change of personnel before we move on to the next business.
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EnactedPublic Service Pensions and Judicial Offices Act 2022