Opinion: Judges' MRA - sitting to 75 or beyond

Retaining experience or stifling diversity and preserving inequality? An analysis of the BAME impact of the consultation - have your say before it closes on 16 October 2020

Currently, the Mandatory Retirement Age (MRA) for judicial office holders is set at 70. However, under new Ministry of Justice proposals, the MRA could be raised to as high as 75 years, with judges being allowed to sit on beyond even that age.

The Lord Chief Chancellor, Robert Buckland QC MP, outlined the plans in a document entitled Judicial Mandatory Retirement Age – Consultation on the mandatory retirement age of judicial office holders, which is accompanied by a period of public consultation that opened on 16 July 2020 and closes on 16 October 2020.

However, in the wake of the Lammy Review, and more recently the ‘Black Lives Matter’ and ‘#MeToo’ movements, some fear that such a move would stop the already glacially slow progress towards greater ethnic and gender equality within the judiciary in its tracks, with evidence suggesting that if implemented, diversity among judges would actually decrease. 

The consultation document makes the point that the Judicial Pensions Retirements Act set the mandatory retirement age of 70 for tribunal and circuit judges as long ago as 1993. Further legislation, in 2003 and 2013, set the same MRA for magistrates and coroners. However, says the Ministry of Justice (MOJ), life expectancy has increased and many people want, and expect, to continue working, which will also retain expertise (para 3). The Ministry also points out that longer tenures for sitting may make the bench a more attractive job opportunity in the future. This comes after Lord Neuberger expressed concerns back in March 2017, about what he referred to as an increase in ‘Refuseniks’ – advocates who were refusing to move to the bench because of misgivings over the pay and treatment of judges. 

In March 2019, Lady Hale then aged 74, and the President of the Supreme Court, suggested that the age of retirement should be increased across the board to 74. Lady Hale told the Lords Constitution Commission that the poor recruitment rate ‘suggested that the problem is that there are not enough judges and that would be helped if people could stay longer’, however she also warned against having ‘bed-blockers’ at the top of the profession and not wanting ‘the bench to be too old’. 

The MOJ has therefore put forward three proposals for consultation, all of which would require a change in the law:

1. raising the MRA to 72;

2. raising the MRA to 75; and

3. allowing magistrates’ appointments to extend beyond their MRA to fall in line with judges.

This would be all well and good if the judiciary was not already blighted by an enduring public perception of predominately white, upper-class males who are out of touch with the public that they sit in judgement of. A little unfair? PerhapsBut it is now three years since the Lammy Review flagged that a fundamental source of mistrust in the criminal justice system among BAME communities was the lack of diversity among those who wield power within it, and that BAME applicants were recommended for judicial positions at lower rates than they applied. The recently published 2020 Judicial Diversity Statistics continue to bear this out – and state that success rates for BAME candidates who apply to be a Deputy High Court Judge are still 75% lower than their white counterparts and 59% lower success rates are noted for BAME candidates applying for Recorderships!

The 2020 statistics also state that women still make up only 32% of all judges sitting in the courts (the same percentage as 2019), with numbers slightly higher in the tribunal courts at 47% (46% in 2019) and 21% of those sitting in the Court of Appeal (slightly down on the 2019 figure of 23%). The 2020 report acknowledges that the number of BAME judges remains lower than the general population (14%), at around 8% of court judges.

However, it is worth remembering that figures on BAME can themselves be misleading as they relate to anyone who identifies as being part of an ethnic group and therefore quoting the overall BAME figures can make the levels of diversity seem far greater than they actually are. This is something that can be seen when one compares the 2020 diversity statistics with those published in 2019. What is most striking is that the 2019 Judicial Diversity Statistics contained a further breakdown of BAME by individual ethnicities and stated that as of 1 April 2019, Asian or Asian British accounted for only 4% of all court judges, whereas Black and Black British accounted for only 1% of the judiciary. It is noteworthy that this further statistical breakdown has not been included in the 2020 version and merely the headline figure of 8% BAME is relied upon. Cynics may say that this has been done deliberately to mask these low figures and the fact that they actually seem to be falling. Therefore, if these proposals are implemented the figures could fall even lower.

Nevertheless, the MOJ argues that a higher MRA would make the job more attractive and retain experience. It is also right to note that it would additionally save a great deal of money. Budgets would inevitably be cut on training new judges and paying the pensions of those who would seek to take advantage of the life expectancy figures and enjoy a long and happy retirement. The MOJ Impact Assessment estimates that a higher MRA could save between £21-26m in pension liabilities and between £2-3m in the reduced operation of the Judicial Appointments Commission, the Judicial Office, HMCTS and the Judicial College. One may therefore be forgiven for thinking that this is less about retaining expertise and more about saving money.

The consultation document acknowledges that a higher MRA would reduce the volume of new recruits (para 65) but it is the extent of those reductions that are so alarming. The document states that excluding magistrates and coroners, raising the MRA to 72 could retain 245 judicial office holders a year, based on yearly recruitment of around 1,000 vacancies, which equates to a 24% reduction in vacancies each year (para 68). However, if the MRA was increased to 75, this would mean that 399 judicial officer holders would be retained, or a 40% reduction of the yearly recruitment based on 1,000 vacancies (para 71).

This potentially sharp reduction in new vacancies is bound to have a retrograde effect on diversity and the small amount of progress that has been made so far.  

The 2020 Judicial Diversity Statistics seek to ease concerns about the stubbornly low diversity figures, by stating that the proportion of BAME and women judges was higher in those joining the judiciary than in those leaving the judiciary. The report states that as of 1 April 2020, 8% of court judges and 12% of tribunal judges were BAME. That was based on an MRA of 70.  

Therefore, there can be no doubt that having an MRA promotes diversity and raising it will almost certainly have an adverse impact. The MOJ’s own figures predict that raising the MRA to 72 would reduce the number of female office holders by 0.7% and the number of BAME office holders by 0.1% (paras 79-80). However, raising the MRA to 75 would lead to 1.2% fewer female judicial office holders and 0.3% fewer BAME judicial office holders being appointed each year (arguably a small reduction, but bear in mind the already lowly figure of 1% of the judges that are Black or Black British) (paras 82-83).

Nevertheless, it should be noted that these figures are based on what the MOJ refers to as the ‘best estimates retention model’, using the current levels of departure rate (p 21, see fn 14). Any adverse fluctuation in that model could lead to a full-on and significant reversal of these diversity statics. Furthermore, in the event of a change in the law, it seems that those judges who are currently sitting and expecting to retire at 70, will have to sit on until they are 72 or even 75. According to para 44 of the MOJ Equality Statement which accompanies the consultation paper, ‘A higher MRA would apply to all existing and future judicial office holders at the time of it coming into force.’

If so, then this would reduce the number of vacancies to a trickle for possibly half a decade, until all those who would have retired at 70, reach 75. This would inevitably lead to the long-term stagnation of recruitment across the board.

The MOJ in addressing this issue stated as follows: ‘At present we consider the extent of any impact proportionate to achieving the necessary gains made in retention and expertise… This analysis assumes no improvement in the diversity of new applicants to the judiciary and so any adverse impact may be offset or eclipsed by increased efforts to promote diversity and in the judicial pipeline.’  (para 81)

It is, however, notable that no mention is made as to what form these ‘increased efforts’ might take.

But some may ask, is this all really necessary? The MOJ already has the power to allow judges to sit on after the MRA of 70, where there is a shortfall of judicial experience, up to the age of 75. Of course, this also comes at cost, with such judges being allowed to retire, draw their pensions and then return to the bench and sit as fee-paid judges. The MOJ may well regard this as financial ‘double whammy’ and see a higher MRA as a way of keeping judges in harness for longer and away from drawing their full judicial pensions.

If so, then judges themselves may also be concerned by these proposals and especially by a suggested caveat that could allow judges to sit on beyond even 75, currently phrased as only being ‘in very exceptional circumstances’ but it remains to be seen whether such wording finds its way into any new legislation.  

Many have questioned whether there really is a shortfall of people wanting elevation in any event, while others point to the current financial decimation of the criminal Bar during the COVID-19 pandemic, as being the strongest possible motivator for more people to apply for the security of the bench in the next rounds.  It could also be argued that a far better way to cure any shortfalls in judicial expertise while maintaining or even speeding up diversity within the profession, would be to streamline the turgidly slow recruitment process that is currently in place. In addition, the question has been posed as to whether the current system of selection that can take 18 months or even longer, from the opening of judicial competitions to appointment, is really fit for purpose.     

Those currently practising at the Bar will also be affected by any raising of the MRA and not just the ones with aspirations. Raising the MRA may not do much for the judicial temperament of those we have to appear in front of, who were wishing to retire at 70 and now will be forced  to stay on for the full pension.

The simple fact for all members of the Bar hoping for a judicial position, is that if the MRA is increased, there will be far fewer job opportunities on the benches and the ethnic and gender inequalities that have persisted for decades, will remain in place well into the future.   

If you have any views on this topic then please read the consultation documents here and have your say.

About the author
The author is a practitioner specialising in criminal law.

Published on 25/09/20. The consultation has now closed.