The legality and morality of judicial retirement ages

AuthorStuart Goosey
Published date01 December 2018
Date01 December 2018
DOIhttp://doi.org/10.1177/1358229118792332
Subject MatterArticles
Article
The legality and
morality of judicial
retirement ages
Stuart Goosey
Abstract
The judicial retirement age in the United Kingdom, which requires judges to retire
before they reach the age of 70, engages the age discrimination provisions of the Equal
Treatment Framework Directive [2000/78/EC] and therefore is only lawful if it is shown
to be a ‘objectively and reasonably justified by a legitimate aim’. This article argues that
the judicial retirement age is justified and therefore lawful under European Union law. In
support of this argument, I outline a pluralist theory of age discrimination that consists of
principles that explain when age-differential treatment wrongs people and when that
treatment is justified. The theory includes the following principles: equality of oppor-
tunity, social equality, autonomy, respect and efficiency. After considering these prin-
ciples, I argue that the judicial retirement age in the United Kingdom is justified by
advancing equality of opportunity and social equality by increasing the turnover of judges
and therefore increasing the number of vacancies for younger people and under-
represented groups.
Keywords
Age discrimination, EU law, judicial retirement ages, Framework Directive, pluralism
Durham Law School, Durham University, Durham, UK
Corresponding author:
Stuart Goosey,Durham Law School, Durham University, 4 StocktonRoad, Durham DH1 3DX, UK.
Email: stuart.j.goosey@durham.ac.uk
International Journalof
Discrimination and theLaw
2018, Vol. 18(4) 197–217
ªThe Author(s) 2018
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1358229118792332
journals.sagepub.com/home/jdi
Introduction
Mandatory retirement ages were once a widespread and accepted tool for workforce
planning in the United Kingdom. Increasingly, however, they have been challenged on
the grounds that they are discriminatory. With the repeal of the national default retire-
ment age, employers can now only lawfully implement a retirement age if the retirement
age can be objectively justified as a proportionate means of achieving a legitimate aim.
1
As a result, large numbers of employers have abandoned mandatory retirement ages and
have sought other ways of planning the departure of staff.
However, there are a few industries that continue to use mandatory retirement ages,
most notably the judiciary. Section 26 of the Judicial Pensions and Retirement Act 1993
requires that judges retire before theyreach the age of 70 unless a minister grants permis-
sion for particularjudges to retire after this age. This retirement age is exempted from the
Equality Act 2010prohibition of age distinctionsas a result of section 191 and schedule 22
of the EqualityAct 2010, which provide that agedistinctions are lawful when anemployer
must implement an age distinction due ‘to the requirement of an enactment’.
2
In a recentarticle, Alysia Blackham(2017a) has arguedthat the judicial retirementage in
the United Kingdom is nonetheless likely to violate European Union (EU) law. This is
becausethe judicial retirementage engages Article 3(1)of the Equal Treatment Framework
Directive [2000/78/EC] (‘the Framework Directive’) which prohibits unequal treatment
because of age in the contextof ‘employment and working conditions’ unless the treatment
is ‘objectivelyand reasonably justifiedby a legitimate aim...and if the means of achieving
that aim are appropriate and necessary’. Blackman’s view is that the government will
struggle to demonstrate that the judicialretirement age is objectively and reasonably justi-
fied, and therefore, the retirementage may violate the Framework Directive.
3
In this article, I argue that the judicial retirement age is compliant with the Framework
Directive and lawful because the judicial retirement age can be objectively and reason-
ably justified. After setting out a number of argume nts from the case law, Hansard
debates and academic commentary on retirement ages, I consider a theory of age dis-
crimination that consists of a range of principles that can determine when age-
differential treatment is justified and when it is not, and I apply this theory to judicial
retirement ages. The theory of age discrimination consists of the following principles:
efficiency, equality of opportunity, social equality, autonomy and respect.
4
After con-
sidering these principles, I argue that the judicial retirement age is a proportionate means
of advancing equality of opportunity and social equality by the policy creating oppor-
tunities for younger workers which can in turn advance the aim of increasing the diver-
sity of the judiciary. However, I explain that we should reject the unpersuasive argument
propounded in UK and EU cases that retirement ages are justified on the basis that they
are an efficient proxy for declining performance.
Determining the legality of the judicial retirement age requires
a theory of age discrimination
A theory of age discrimination is essential in identifying unlawful age discrimination
under the Framework Directive and the Equality Act 2010 because the Framework
198 International Journal of Discrimination and the Law 18(4)

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