Is the current system of forcing senior members of the judiciary into retirement at 70 a regressive step for English law?‘
Will you still need me,
will you still feed me,
when I’m sixty-four?’
The Beatles, ‘When I’m Sixty-Four’

The Judicial Pensions and Retirement Act 1993 states that judges must formally retire at 70. However, as the Justice Secretary, Jack Straw, confirmed the names of the 12 justices filling the new Supreme Court of the United Kingdom, Pannick contends that ‘there is a very strong case for increasing the retirement age for Supreme Court justices’. Therefore, it is questionable whether the Judicial Pensions and Retirement Act 1993 is, in effect, nothing more than a blatant form of statutorily enforced age discrimination. Moreover, with the retirement in April 2009 of Lord Hoffmann, who is rightly considered to be one of the most cerebral and distinguished judges of his generation, it is arguable that the Act has had a further negative impact upon English law: it has forced into retirement those judges who are ‘still fresh in mind and body and well short of their sell-by date’. Consequently, in light of these criticisms, it is advocated that the mandatory judicial retirement age should be raised by ten years.
Justice for all?
The argument for increasing the mandatory retirement age for senior members of the judiciary is simple. Those individuals who are appointed to the highest ranks of the English judiciary are, clearly, recognised as the ‘cream’ of their profession. As Pannick argues, the most senior judges (particularly the Law Lords) have served for lengthy periods in the High Court and Court of Appeal and, in the time taken to reach the top, have amassed a considerable wealth of experience. Therefore, owing to the experience gained by senior judges, it seems ridiculous that we should be prepared to dispose of ‘judicial resources of such quality’, merely because the individual concerned has reached 70 years of age. As Pannick notes, standards of judicial administration have improved considerably since 1708, when an almost 90-year-old Salathiel Lovell was appointed Baron of the Court of Exchequer. While Lovell’s advanced age meant that he was of little help to his colleagues, it is contended that many of the fears expressed by Lester concerning the difficulties of ‘removing a senior judge whose powers are failing’, are potentially allayed by the fact that there is widespread support for a fixed judicial retirement age. Moreover, in light of the difficulties faced in trying to remove a judge from office against his will, it is unlikely that the approach adopted by the US Supreme Court, which does not have a mandatory retirement age for its justices, will ever be pursued by any subsequent legislation. Having accepted that there should be a recognised judicial retirement age, the next key question is to ascertain exactly what that retirement age should be. Pannick has proposed that the judicial retirement age should be nraised from 70 to 75. While this is a potentially welcome move, the author contends that it does not go far enough and would still lead to the premature end of the judicial careers of ‘some men and women who continue to have a valuable contribution to make’. Furthermore, Pannick’s suggestion that we should increase the judicial retirement age by five years has already been criticised by Lord Bridge of Harwich, who in 1995 (when still serving as a supplementary panel member) expressed his anger at what he saw as ‘the statutory presumption of judicial incompetence at 75’. Moreover, it can be argued that, upon his forcible retirement, Lord Bridge was at the height of his intellectual powers and, for those judges of Lord Bridge’s standing, it is contended that Pannick’s suggestion to increase the retirement age by five years is unsatisfactory. Indeed, the fact that Lord Bridge graduated with a degree in mathematics from the Open University at the age of 86 clearly demonstrates that his Lordship was still capable of exercising the functions of judicial office far beyond the limit envisaged by Pannick.
Familiarity breeds contempt
Upon his retirement from the US Supreme Court in 1932 at 90, Oliver Wendell Holmes observed that old judges ‘are more likely to hate at sight any analysis to which they are not accustomed’. While there may be some modicum of truth in this statement, it is arguable that this comment is equally applicable to any judge, regardless of age. Moreover, it is clear that in those instances in which a claimant or defendant can clearly demonstrate judicial bias, the possibility of an appeal against the decision by the ‘aged’ judge remains an effective safeguard. Similarly, the composition of society has changed drastically since 1932 – particularly in Europe. The population of the UK is ageing and in 2008, the number of people of pensionable age was, for the first time, greater than the number of those under-16 years of age. Moreover, it can be argued that this statistic indirectly supports the notion to increase the judicial retirement age beyond 70. Holmes appears to suggest that older judges are more likely to be biased against modern ways of thinking, and, by analogy, those younger parties who appear before them.
However, in the case of England, it can be argued that the reverse of Holmes’ position may be closer to the truth: it is possible that some younger judges may be more likely to react negatively to an increasing number of older litigants. In this respect, it is arguable that an increased number of older judges would perform a valuable function in administering justice to a more elderly population. Clearly, the current judicial retirement age of 70 is too low. As Pannick notes, the 1993 Act (and the almost identical Judicial Pensions Act 1959, on which it was based) would have robbed us of judges such as Lords Reid, Wilberforce and Bingham ‘whose intellectual force, constitutional perspective and good sense’, were all adeptly exercised in the House of Lords when they were all over 70 years of age. Consequently, while it is accepted that there must be a judicial retirement age, the author contends that the current limit should be raised by ten years. This would bring the Act in line with 21st-century perceptions of the elderly and allow leading judges such as Lord Hoffmann to continue in office without being ‘prematurely retired’. The Judicial Pensions and Retirement Act 1993 is discriminatory and unfairly forces competent judges into premature retirement. As Pannick argues, many members of the English judiciary did much of their best work after 70 and, therefore, it would be a ‘great detriment’ to our legal system if the current judicial retirement age is not increased.

Ben Slight has just completed a taught LLM in Medical Law and Ethics