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The value of experience

The question of valuing workers regardless of their actual age has already been dealt with in this column in Age concern . This week will see the swearing-in of the new Supreme Court judges with its first hearings following next week. Lord Phillips has called for Supreme Court judges to be able to stay on until the age of 75. This is because they are frequently appointed late and to stop them sitting at 70 may be to shorten their careers when they are still at the height of their powers. Is Lord Phillips right to suggest this?

The issue of working age has been in the headlines this past week with the handing down on 25th of September of the decision of Mr Justice Blake in the application in the Administrative Court on behalf of Age UK which challenged the legality of the Employment Equality (Age) Regulations 2006 SI 1031/2006 ("the Regulations"). The Regulations were promulgated on the 3rd April 2006, came into force on 1st October 2006, and were intended to give effect to European Council Directive 2000/78/EC of the 27th November 2000 (the Directive). At paragraphs 126 and 127 of the judgment the Judge stated as follows (additions in italics are not part of the judgment):

"126.There may be no European consensus but in the light of changed economic circumstances and the generally recognised problems that a longer living population creates for the social security system the case for advancing the DRA (note this is the designated retirement age) beyond minimum age of 65 at least would seem to be compelling. I am conscious that very shortly before the hearing of this application, on the 13th July 2009 the government announced its intention to move forward the review of the Regulations from 2011, its original planned date, to 2010. The Prime Minister is quoted as saying:
"Evidence suggests that allowing older people to continue working, unfettered by negative views about ageing could be a big factor in the success of Britain's businesses and our future economic growth". (Whilst personally I am no great fan of the Prime Minister I am sure in saying this he is entirely right.)
127.That decision has been broadly welcomed by the claimants and the intervenor as enabling the legislator to reconsider the balance of competing considerations in the light of contemporary conditions. Whether or not it will be decided that a DRA is still a valuable means of promoting the government's social policy aims is a matter entirely for the future, for the reasons I have sought to indicate. However, if a DRA is retained at all, the review must give particular consideration to whether the retention of 65 can conceivably now be justified."

Although because of the date of challenge and the intention to pursue the review the application did not succeed the view of the Judge was plain and expressed in paragraph 30, namely " It will, however, be apparent from my observations at [128] above that the position might have been different if the government had not announced its timely review. I cannot presently see how 65 could remain as a DRA after the review.". Most although much of the reporting regarding this case seemed to indicate that the application was a failure, it was only so technically and the underlying policy would suggest a higher retirement age is appropriate and desirable.

Lord Phillips is able to sit beyond the age of 70 because he was appointed at an earlier stage and so can continue to sit under the transitional arrangements. Lord Phillips has both his supporters and his detractors, yet I am sure they would be unanimous that there can be no question of his being other than in robust intellectual form and apparently well equipped to sit for many years yet. There are many other examples of judges similarly equipped. I think the case for permitting Supreme Court judges to sit until 75 is compelling and should be acceded to.

There are however some practical issues. Should this be restricted to judges of the Supreme Court? (In a sense they have the most trying and testing job of all so one might say it was illogical to permit them to sit when judges at a lower level could not: on the other hand at the very top level these judges are most likely to be recently appointed, having come to such an elevated role at an advanced age after years of dedicated judicial success, and are in any event so much in the public spotlight that any failing would readily become apparent not least to themselves). By what test does one establish whether people are still in sufficient health to carry on sitting? Trying to have a test which decides whether they still have sufficient mental acuity would be extremely difficult to devise. Leaving it to government discretion would be unfortunate if it gave the impression that "troublesome" judges (i.e. ones who gave decisions which governments did not like) might be more likely to be removed. It only takes one unfit judge to cause an outcry which the example of many fit judges of similar age would do nothing to abate. However medical tests should show whether there is any reason to suppose that the judge not be sufficiently fit to carry on sitting.

The policy of the law should be to support people in making the most of their talents both for their own benefit and that of society. Age for retirement should not be circumscribed in a straitjacket. If that is the policy of the law then, in so far as possible, it should be reflected in those entitled to sit in the highest court in the land.

Michael J. Booth QC