Judicial mandatory retirement age: consultation analysis

Executive Summary

This paper provides a report of the responses received to the Scottish Government consultation on Judicial Mandatory Retirement Age. The consultation welcomed views on the mandatory retirement age (MRA) for devolved judicial office holders (JOHs) in Scotland whose MRA falls within the legislative competence of the Scottish Parliament. The consultation received 71 completed responses. We received a joint response from the Lord President of the Court of Session and the Lord Justice Clerk, and a response from the Chamber Presidents of the devolved Scottish Tribunals and the Presidents of Scottish tribunal jurisdictions. Seven responses were received from judicial and legal organisations or representative bodies on behalf of their members. 11 individual respondents noted that they were JOHs.

There was strong support for the proposal to raise the MRA, with the majority of respondents (73.2%) in favour of raising. Of those who were in favour of raising, the majority (75%) were in favour of 75 instead of 72. The most common reason given for supporting a raise in MRA was that it would help to retain skills and experience within the judiciary.

The majority of respondents (68.1%) also felt that increasing the MRA would not negatively impact their confidence in the judiciary. Again, the retention of skills and experience of older JOHs was a significant factor for maintained confidence.

The majority of respondents (59.4%) were in favour of maintaining parity with the UK, should the MRA be raised for reserved judicial offices. The most common reason for preferring to maintain parity was to ensure equity for JOHs in Scotland with those in the rest of the UK.

When considering the possible impact of a higher MRA on recruitment and retention of JOHs, the largest group of respondents (40.9%) felt that a higher MRA would encourage JOHs who would currently retire before the age of 70 to remain in post. However, a substantial number (24.2%) felt that decisions about the age at which to retire are often based on personal circumstances, which would vary considerably between individuals and which would not necessarily be influenced by a change in the MRA.

The majority of people (50.7%) felt that increasing the MRA would attract more people to apply for judicial office. Respondents noted that a higher MRA would encourage older candidates to apply, as they would have a longer time to serve before mandatory retirement. Of those that did not agree that increasing the MRA would attract more applicants (37.7%), half noted that decisions to apply to judicial office are not influenced by retirement age and a change to the MRA would have no impact on applications.

When considering the impact of raising the MRA on the diversity of the judiciary, 33.3% felt that it would have an adverse impact while 49.3% said that it would not have an adverse impact. 41.2% of respondents felt that a higher MRA would not attract more diverse candidates to apply for judicial office while 30.9% felt that it would. Respondents who felt that a higher MRA would negatively impact the diversity of judiciary noted concerns around older JOHs preventing the recruitment of younger, more diverse candidates and slowing the pace of change. However, respondents who did not think that it would have a negative impact noted that a higher MRA may improve gender and age diversity. Several respondents felt that a higher MRA may attract more applicants who have taken longer to build up the experience required for judicial office due to caring responsibilities, career breaks, or facing barriers to career progression.

There was strong support (75.4%) to allow extensions of appointment past the MRA for applicable offices, as currently provided for in s.26(5) and (6) of the Judicial Pensions and Retirement Act 1993, be maintained if the MRA is increased to 72. There was also strong support (76.9%) for JOHs being able to sit beyond the age of 75 in exceptional circumstances. Some examples of justifiable circumstances were to allow for the closing of cases, or to provide expertise for a particular case.