Judges would be able to take advantage of flexible working and career breaks under proposals put forward by the House of Lords Constitution Committee. Senior judges could work until the age of 75, laypersons could sit on selection panels and judges could be formally appraised on their performance, the peers suggested in their March report, Judicial Appointments.
Any appraisal system would be judge-led to maintain judicial independence. While it could be expensive to run, the peers said, “the cost should be set against the cost of having poorly performing judges given no opportunity to improve, and talented individuals given no encouragement to seek promotion”.
They expressed disappointment at the progress made on judicial diversity to date. Currently, 22% of judges are women and 5% are black or ethnic minority (in 1998, the figures were 10% and 1.6%, respectively).
They recommended raising the retirement age for Court of Appeal and Supreme Court judges by five years to 75 to retain talent at the highest level, and for the Lord Chief Justice to take over the Lord Chancellor’s powers to reject or recommend reconsideration of nominations for judicial office below the High Court. Both the Lord Chancellor and the Lord Chief Justice should be given a duty to encourage diversity among the judiciary, they said.
The peers supported the use of the “tipping provision” (s 159 of the Equalities Act 2010) for judicial appointments – where two candidates are equal, the one with the “protected characteristic” may be chosen – as well as introducing flexible working and career breaks. They advised against quotas but called on the government to consider introducing “non-mandatory targets” if there has been no “significant progress” in five years.
Committee chair, Baroness Jay, said: “It is important that judges are appointed on merit but the committee felt there are steps that could be taken to promote diversity without undermining that principle.”