Judicial retirement: Plans to move from 70 to 75

Graeme Cowie

Last year, the Government consulted on relaxing the judicial retirement rules.

This week, the Lord Chancellor, Robert Buckland, published the Government’s response and outlined its policy intentions following that consultation. It intends to raise the mandatory retirement age from 70 to 75, and to allow magistrates to serve until age 75 where business need requires it.

This Insight explains the policy context leading to these changes.

What are the current rules on judicial retirement?

From spring 1995, legislation came into force requiring newly appointed judges to retire at age 70.

For many roles, this meant a reduction from 75 or 72, imposed by previous legislation. The mandatory retirement age (MRA) applied to almost all new judicial appointments across the three territorial jurisdictions of the UK: England and Wales, Scotland and Northern Ireland. For existing judges, however, transitional arrangements applied. This meant their MRA was usually higher, depending on when, and to which judicial role, they were appointed.

The Lord Chief Justice and the Lord Chancellor, by agreement, can extend a sitting judge’s service beyond the age of 70, by one year at a time, if they deem it to be in the “public interest”. Retired judges can also sit on an ad hoc basis to help meet an urgent “business need” until the age of 75.

Similar arrangements were implemented for justices of the peace (or “lay magistrates”) in 2005. As voluntary judges, they do not ‘retire’ at the MRA but are required to step down on turning 70. There is no flexibility for magistrates to stay on.

Why was a mandatory retirement age of 70 imposed?

UK policy-makers widely accept that an MRA for judicial office holders is necessary. This is the case even if, as the Lords Constitution Committee put it in 2012, it is a “blunt instrument”. It explained:

the principle of judicial independence necessarily makes it very difficult to force a judge to retire on the grounds of declining capacity to act: who should assess when the time is right for a judge to step down from his or her post?

One reason for standardising the MRA was to make retirement and pensions more consistent across the judiciary, and less of a ‘patch-work’. Setting the MRA at a lower age (70) was also seen as a way to improve both diversity and career progression by increasing turnover of judges.

What are the arguments against the current mandatory retirement age?

According to the Government’s consultation response, the needs of the judiciary have changed considerably since 1995. Not only has life expectancy risen, but there are also concerns that expertise and experience is being lost prematurely at a time when the courts system faces capacity challenges. It is also concerned that recent judicial recruitment drives appear to have fallen short of their targets.

The Lords Constitution Committee raised concerns in 2012 about a one-size-fits-all approach to the MRA. It argued a more flexible approach might be taken for the senior judiciary than for those appointed only to serve County or Magistrates’ Courts.

The Government also raised concerns about losing experienced lay magistrates to retirement. It alluded to there being a drop, and another expected drop, in lay magistrates’ numbers, which is more acutely felt in some parts of England and Wales than others.

What is the Government planning to do?

The Government intends to legislate to raise the MRA to 75 when parliamentary time allows (presumably in the 2021-22 session). For judges who wish to serve after age 70 in a part-time capacity, the Government has indicated that flexible working arrangements will be viewed sympathetically.

The Government also plans to allow lay magistrates to apply, between ages 70 and 75, to be “re-instated” where there is an urgent business need.

In anticipation of these changes, the Judicial Appointments Commission (JAC) has been issued with new guidance on recruitment. Although new candidates must be under 70 (until legislation is passed), the JAC will pre-emptively take into account the higher MRA when deciding whether someone can offer a “reasonable length of service” to a judicial office when applying.

What are the policy risks?

The Government acknowledges it is going further than the heads of the judiciaries recommended in their consultation responses. The Lord Chief Justices of both England and Wales and of Northern Ireland advocated raising the MRA to 72, whereas the Lord President (from Scotland) was sceptical about raising it at all. Others, including the Bar Council, broadly agree with the Government’s approach.

A higher retirement age could present challenges for other policy objectives in judicial recruitment, by temporarily reducing the number of vacancies and therefore opportunities for those to join, or move up, the judicial ladder. The Government acknowledged this concern was raised by the Commons Justice Committee in its consultation response.

Many of the judiciary’s diversity policies, on the representation of women, BAME communities and those from socio-economically disadvantaged backgrounds depend, to some extent, on there being a regular stream of vacancies for judicial office. If the new law on mandatory retirement reduces turnover, this may slow progress towards a more representative judiciary. The Government has acknowledged this risk, but believes the impact would be “slight”.

Devolution implications

Not all of the UK’s judicial appointments are matters for the UK Government and the Judicial Appointments Commission. Most judicial appointments in Scotland and Northern Ireland, and some tribunal appointments in Wales, fall to the devolved equivalents. This means judicial retirement law could diverge in those parts of the UK. The current judicial retirement law pre-dates devolution and is UK-wide.

The devolved authorities launched their own parallel consultations into the MRA (Scotland, Northern Ireland, Wales). They have yet to publish Government/Executive responses. The Ministry of Justice has indicated a preference that the MRA should be consistent across the jurisdictions, but that it will continue to “work closely” with the devolved authorities on this matter.