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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