16 October 2020
JUSTICE has responded to the Ministry of Justice’s consultation on the mandatory retirement age for judicial office holders. The consultation seeks views on whether the mandatory retirement age (which is currently 70) should be raised and, if so, whether it should be raised to 72 or 75.
We are pleased that the Consultation recognises the need to promote opportunity and diversity through the steady flow of new appointees, and that promotion of judicial diversity is one of the stated objectives for setting the mandatory retirement age. We also recognise the issues with recruitment shortfalls. However, we are concerned that raising the mandatory retirement age will have an adverse impact on the diversity of the judiciary. New appointees to judicial office tend to be more diverse than older incumbents. If the MRA is raised this will result in some incumbents remaining in post longer, resulting in fewer opportunities for the appointment of new, and likely more diverse, judges. It was for this reason that JUSTICE supported the 2016 proposal in the ‘Modernising Judicial Terms and Conditions’ consultation for single non-renewable fixed term appointments to Recorder and Deputy High Court Judge. The negative impact on diversity growth would be amplified the more diverse new appointees become and may be further impacted by proposed changes to the judicial pension scheme, which if implemented may result in judges remaining in post longer.
We recognise that it is possible that raising the mandatory retirement age may have a positive impact on judicial diversity by providing greater opportunity for those who have taken longer to gain the experience the necessary for judicial office, for example, because they took a career break, worked part time or faced structural barriers to career progression in private practice. However, our analysis of judicial appointments to the Circuit bench and High Court bench, released in February 2020, reveals that in recent years women have been appointed to these courts more swiftly and with less experience than male counterparts.
We therefore recommend that current mandatory retirement age is retained. In the event that it is raised, given that a mandatory retirement age of 75 would be substantially worse for judicial diversity, we urge that it only be increased to 72.