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One
central principle in the argument which states the retirement age should be
raised is consequence of the “recruitment crisis” we have faced within the
judiciary since amendments were introduced in the 1993 act. This principle is
supported by Lord Woolf and Lord Neuberger who have publicly pressed for the 70
limits to be reverted to 75, as we had seen previously. There are potential
limitations imposed by the current legislation on the quality of the judges we
have presiding in our Courts. Lord Neuberger voiced concerns to the Lords
Constitution Committee, stating iithat
“the problem of recruitment means that if you are going to get first class applicants,
they are probably going to be older.” The implication of this means that it
becomes difficult to replace judges with the highest levels of experience and
knowledge when they reach 70 with judges who may be more diverse, but unable to
apply the same levels of expertise to cases. However, this opinion should be
interpreted carefully as his statement was made in March 2017, at the age of
69, meaning his retirement was to commence in the following months, perhaps
suggesting his views could be bias.

 

Lord Woolf
expressed concerns over Lord Neuberger’s retirement and said that heiii,along
with some of the finest judges, are compelled to retire because of the law,
preventing them from continuing to deliver valuable service, even when they are
more than capable and in many cases at the peak of their skill, knowledge and
experience. As the law is often so complex it is imperative our judges are
focused and sharp minded, which is capable of many over 70 and comes
consequence of skills that cannot always be taught or achieved without a plethora
of working experience, it may take many years to achieve. The effect of this in
practice means we may lose many of our best judges, just as they peak in
ability and their career.

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Lady Hale
also backed these concerns when addressing the constitution select committee explaining
that the recruitment crisis is mainly because judges have to retire at the age
of 70 “even though they are at the height of their powers, which is a great
shame.” iv

 

In
contrast to this, the Ministry of Justice argues that reducing the retirement
age to 70 acts in the best interest of public policy, as supported by the
Employment Tribunal in the case of White v Ministry of Justice v
that documents an age discrimination case, of which Mr White was a circuit
judge who upon turning 70, had to retire. The employment tribunal dismissed Mr
White’s claims as they concluded that the Ministry of Justice successfully legitimised
the motives behind the retirement age they had set, and supported that these
acted in the interests of inter-generational fairness, preservation of (judge’s)
dignity and maintaining public confidence.

 

 

Debates
continue around the motivations when the changes were enforced by the 1993
Act.  A major issue pre-1993 was the lack
of diversity within the judiciary, and was considered to be populated with
those “middle-aged, middle-class and middle-minded” working in a system “made
by men, for men.” Currently the youngest individual to become a UK judge was Richard
Wright QC, who was made a deputy district judge at 29 in 2006 and in 2017 we
saw the youngest female judge aged 31. viBriony
Clarke joined a local law firm as a 15-year-old work experience intern and has
now been sworn in as a deputy district judge 16 years later. A report by the
Independent newspaper stated that Ms Clarke will not reach the current
compulsory retirement age until January 2056 meaning she can apply her service
for 39 years. This shows that it is possible for us to achieve such a diverse
panel of judges in terms of age and gender, whilst allowing them to progress in
their careers for a very long time. Ms Briony Clarke acts as evidence against
those who argue the current retirement age poses limitations on judges and their
services.  

 

During my
research, I have considered the correlation the retirement age for judges has
with members of the judiciary such as jurors, as well as other professions in
context of a UK average. Conflicts are clear since the eligibility age of
jurors was raised from 70 to 75 in 2016. vii
This lack of consistency is problematic for many reasons. The Ministry of
Defence conducted a press release since published on the Gov.uk website stating
that the new limit will provide a better reflection of the healthy life
expectancy we see today and should encourage jury pools more representative of
the communities they serve. It is indisputable that jurors are a fundamental
part of the system that operates in the United Kingdom, and there are several
justified reasons in favour of the eligibility age to be raised to 75, however
it seems strictly illogical to not apply this to judges. The knowledge and
wisdom that jurors can proved aged between 70 and 75 was described as “invaluable”
by Jane Ashcroft CBE, and Saga Director, Paul Green described older people as “astute,
savvy and worldly-wise.” As this is true of so many older people, it is a near
certainty that the same can be said for judges wishing to work until they are
75.

 

 In 2018, the average retirement age (State
Pension age) is expected to equalise for men and women at 65. This age has
risen over previous years and is set to continue until 2044, based on the
argument that life expectancy is increasing. This is significant because it
advocates that people are becoming more and more capable of work until later
stages in life, and many have argued this increase should also be applied to
judges in order to achieve consistency within the law. The general retirement
age has seen frequent amendments over previous years, whilst none have been
made to the profession of judges since 1993 which does in fact suggest the
legislation is outdated, has outlived its purposefulness and needs modernising to
suit a modern society where overall health, sharp mindedness and willingness to
work has improved. This theory has been explored by Lord Mackay of Clashfern
who argued that people are now enjoying better mental and physical health later
in life. This was not the case pre-1993 and meant that the Law Commission had
to request all judges of ill health to retire, which was viewed as impractical,
ineffective and for many, invasive.

 

My
research has led me to conclude that the retirement age should uphold diversity
within the judiciary and maintain public confidence. I have found that this
would be achieved most effectively if the system rejected a blanket retirement
age, instead differentiating retirement levels. Judges with the highest levels
of experience and the most premium knowledge are most likely to work
effectively until 75, therefore this should be the retirement age for judges
sitting in the Court of Appeal and Supreme Court, however the retirement age
should be kept at 70 for other judges.

 

 

 

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