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Is compulsory judicial retirement constitutional? or judicious?

Old Lawyers, via carbolic smoke ball site.The issue of compulsory retirement is not an uncommon one, but it arises today in an uncommon context. From today’s Times Online,

Judges take on Ministry of Justice over age discrimination

Two this week have launched a discrimination claim against the Ministry of Justice over being forced to retire at 70. … The claim is only the latest of several challenges by or lawyers over compulsory retirement. …

An earlier Times Online article reported that senior UK judges are pressing for a change in the law to allow the most senior members of their profession to remain in their posts beyond the age of 70.

This all recalls for me the words of Lord Bridge of Harwich in Ruxley Electronics & Construction Ltd v Forsyth [1996] AC 344, [1995] UKHL 8 (29 June 1995):

My Lords, since the populist image of the geriatric judge, out of touch with the real world, is now reflected in the statutory presumption of judicial incompetence at the age of 75, this is the last time I shall speak judicially in your Lordships’ House. I am happy that the occasion is one when I can agree with your Lordships still in the prime of judicial life who demonstrate so convincingly that common sense and the common law here go hand in hand.

The current Irish judicial retirement age is also 70, but if the challenge in the UK is successful, who’s to say that a similar challenge might not be successful here. Judicial appointment used to be for life, so there have been many long serving Law Lords in the UK, and the longest-serving Irish judge was Christopher Palles, who was Chief Baron of the Exchequer for 42 years between 1874 and 1916. This is still – controversially – the case in the US Supreme Court (pdf); but there is a compulsory retirement age of 75 in the Supreme Court of Canada, whilst other courts (such as the European Court of Justice and the European Court of Human Rights (pdf, see p5, sII.A.12) have term limits rather than retirement ages.

Last year, a legal challenge to the compulsory retirement regime in the Gardaí (police) failed, though the case was not fought on constitutional grounds, and the issue has not been very seriously probed in other constitutional contexts. For what it’s worth, the ECJ has upheld mandatory retirement ages, though another case pending before the court raises the issue even more starkly.

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8 Responses to “Is compulsory judicial retirement constitutional? or judicious?”

  1. […] Cearta.ie: Is compulsory judicial retirement constitutional? or judicious? […]

  2. […] « Is compulsory judicial retirement constitutional? or judicious? Mar 06 2009 […]

  3. […] in Europe, Eoin O’Dell at cearta.ie wondered about the lawfulness of compulsory judicial retirement and reported on the European Court of Justice’s judgment in the Age Concern case on […]

  4. […] Cearta.ie: Is compulsory judicial retirement constitutional? or judicious? […]

  5. […] in today’s Times, taking the field on an issue I’ve looked at already on this blog (here and here); some extracts: Seventy is far too early for a supreme court judge to retire . . […]

  6. I’m not sure. On the one hand you have judges who, if they get too old, may not be able to do their job effectively (due to cognitive decline). On the other hand, why should a judge have to be forced into retirement if he IS mentally competent to serve on the bench.

    As long as the justice he or she is doling out isn’t compromised, keep them on the bench, right?

  7. This is a topic which hits close to home, as my father-in-law is undergoing this very same process. I truly feel that retirement should be judged on an individual, case-by-case basis. To force people to work within these generalized parameters is unfair, especially since the cost of living is only going to continue to increase. Each of us is unique and that goes the same for our individual abilities and capabilities. Thank you for letting me share on the topic, all!

  8. This is an area that has led to some inconsistent child custody decisions between older and more “old school” judges. I have noticed that as child custody law moves more and more in the direction of gender neutrality older judges who came up in the tender years era usually give more time-sharing to the mother. Conversely, the newer generation of members of the bench are leaning more and more toward the idea of shared parenting.

    Is this a reason to force judges from the bench? I still say no.

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Me in a hatHi there! Thanks for dropping by. I'm Eoin O'Dell, and this is my blog: Cearta.ie - the Irish for rights.

"Cearta" really is the Irish word for rights, so the title provides a good sense of the scope of this blog.

In general, I write here about private law, free speech, and cyber law; and, in particular, I write about Irish law and education policy.

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