Judicial mandatory retirement age: consultation

Overview of the MRA for judicial office holders in Scotland

A mandatory retirement age for judges of the Court of Session and above was first introduced by the Judicial Pensions Act 1959, which set a retirement age of 75. Prior to this, judges could continue in office for as long as they wished. For sheriffs principal and sheriffs a retirement age of 72 was introduced in the Sheriffs' Pensions (Scotland) Act 1961. Prior to this, sheriffs could also continue in office for as long as they wished.

The Judicial Pensions and Retirement Act 1993 ("JUPRA") introduced a standard judicial retirement age of 70 for all judicial offices listed in schedule 5, which includes the majority of the UK judiciary. The provisions, which brought greater consistency to the judicial retirement system, only applied to judges' appointments made after the relevant provisions were commenced on 31 March 1995. Some judges appointed to judicial office prior to 31 March 1995 retained their previous (usually higher) retirement date. A MRA of 70 was set in 2003 for magistrates and in 2013 for coroners in England and Wales, which has aligned their MRA with that of the wider judiciary. A MRA of 70 has been applied to judicial offices introduced in Scotland subsequent to 1995, such as summary sheriffs and part-time sheriffs.

The policy objectives for having an MRA for the judiciary are that it:

1. promotes and preserves judicial independence by avoiding individual decisions in each case (albeit with limited provision for extension);

2. preserves judicial dignity by avoiding the need for individual health and capacity assessments;

3. maintains public confidence in the capacity and health of the judiciary;

4. supports workforce planning and allows for greater career progression/ diversity;

5. shares opportunity between the generations by balancing the need for experienced judges to continue in office for a reasonable time against career progression opportunities for newer appointees (and thereby also promoting diversity in the judiciary).

Since the MRA was set, average life expectancy has increased and many people want to and expect to continue working for longer than in previous decades.

A number of factors are relevant in the consideration of the most appropriate MRA for judicial office holders. Chief among these are how to ensure effective resourcing of courts, tribunals and other judicial functions; the need to promote opportunity and diversity through a steady turnover of retirements to allow for new appointments; and ensuring judicial independence and public confidence in the judiciary is protected.

As part of the response to improve recruitment and retention in the judiciary, the Ministry of Justice is considering raising the MRA to 72 or to 75 for judicial offices that fall within the competence of the UK Parliament. It is also considering bringing forward legislation to provide for magistrates' appointments to be extended beyond the MRA when there is a public interest, or business need, in line with existing powers that allow for judges' appointments to be extended.

The purpose of this consultation is to collect views, and additional evidence, on whether the MRA for judicial offices which are within the Scottish Parliament's legislative competence should be raised to either 72 or 75, or whether it should be maintained at 70.

In the event that the UK Government decides to increase the MRA for judicial office holders, this consultation also asks whether, for the purpose of parity for judicial office holders across the UK, the MRA for devolved Scottish judicial offices should be increased in line with their counterparts.

We also seek views on whether the policy to allow a judicial office holder's appointment to be extended past mandatory retirement age should be retained if the MRA is increased. Currently under section 26(5) of JUPRA , the Scottish Ministers may extend the appointment of a judge below Court of Session level, following their compulsory retirement date, for a period of up to one year if they consider it desirable in the public interest. That appointment can then be extended each year by virtue of section 26(6), for a further one-year period up to the point at which the judge turns 75, subject to the same requirement. The power to extend does not apply to the Senior Judiciary (Senators of the Court of Session and above). Under s.20E of the Judiciary and Courts (Scotland) Act 2008 a qualifying former judge can be appointed by the Lord President, where he/she consider doing so to be expedient as a temporary measure, to act as a judge of the Court of Session, up to the age of 75. For tribunal members, Chamber Presidents may request extensions, following which the President of the Scottish tribunals can make a recommendation to Ministers.