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Judicial Pensions and Retirement Act 1993

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26 Retirement date for holders of certain judicial offices etc.U.K.

(1)Subject to the following provisions of this section, a person holding any of the offices for the time being specified in Schedule 5 to this Act (a “relevant office”) shall vacate that office on the day on which he attains the age of 70 or such lower age as may for the time being be specified for the purpose in the enactments and instruments relating to that office, whenever passed or made.

(2)Any reference in this section to a person’s holding an office includes a reference to his being a member of, or otherwise included in, any panel or list of persons appointed, nominated, approved or otherwise selected to serve from time to time in that office (whether or not the panel or list is required by or under any enactment); and any reference in this section or Schedule 5 to this Act to any particular office or to an office of any class or description, or to a person’s appointment to, or vacation of, an office, shall be construed accordingly.

(3)Subject to the transitional provision referred to in subsection (11) below, subsection (1) above applies whether the person was appointed to the office before or after the coming into force of this section; but nothing in this Act, or in any amendment made by it, shall be taken—

(a)to preclude a person from vacating his office before the compulsory retirement date for that office in his case; or

(b)to prevent a person’s appointment to an office coming to an end before that date, in accordance with the terms on which he was appointed.

(4)Subsections (5) and (6) below apply in relation to any holder (whenever appointed) of a relevant office for which the compulsory retirement date in his case falls on or after the day on which he attains the age of 70, except—

(a)[F1Judge of the Supreme Court];

(b)judge of the [F2Senior Courts] of England and Wales;

(c)Lord President of the Court of Session, Lord Justice Clerk or other judge of the Court of Session;

(d)Lord Chief Justice of Northern Ireland or Lord Justice of Appeal, or judge of the High Court, in Northern Ireland.

(5)If, in a case where this subsection applies, the [F3appropriate person] considers it desirable in the public interest that the holder of a relevant office should continue in that office after his compulsory retirement date, he may authorise the person to continue in office, either generally or for such purpose as he may notify to the person, for a period not exceeding one year and not extending beyond the day on which the person attains the age of 75.

(6)If, on the expiration of the period for which a person is authorised to continue in office—

(a)by virtue of subsection (5) above, or

(b)by any previous exercise of the power conferred by this subsection,

the [F3appropriate person] considers it desirable in the public interest to retain the person in office for a further period, he may authorise him to continue in office, either generally or for such purpose as he may notify to the person, for a further period not exceeding one year and not extending beyond the day on which the person attains the age of 75.

(7)After the day on which a person attains the age of 75, he shall not hold any relevant office nor shall he—

(a)be a member of the Judicial Committee of the Privy Council F4. . . ;

[F5(b)act as a judge of the Supreme Court under section 38 of the Constitutional Reform Act 2005;]

(c)act as a judge under or by virtue of section 9(1) of the M1[F6 Senior Courts Act 1981];

(d)hold office as a deputy Circuit judge, within the meaning of section 24 of the M2Courts Act 1971;

(e)sit and act as a judge under or by virtue of section 7 of the M3Judicature (Northern Ireland) Act 1978;

(f)act as a deputy, or as a temporary additional officer, under subsection (1) of section 91 of the M4[F6 Senior Courts Act 1981] by virtue of subsection (3) of that section [F7(holders of relevant office);]

[F8(g)hold office as a deputy district judge if either section 102(1B) of that Act (former district judge appointed as deputy in the High Court) or section 8(1ZB) of the County Courts Act 1984 (former district judge appointed as deputy F9...) applied to the appointment;]

[F10(ga)hold office as a deputy judge of the Upper Tribunal if—

(i)section 94B of the Constitutional Reform Act 2005 applied to the appointment, and

(ii)his corresponding qualifying office was listed in section 6(1) of the Tribunals, Courts and Enforcement Act 2007;]

(h)hold any office—

(i)to which appointments are made by or under any Act or statutory instrument;

(ii)for which there would, apart from this paragraph, be no compulsory retirement date; and

(iii)for appointment to which only persons who have held relevant office are eligible;

and this subsection applies whether or not the person was invited to act as a judge, or was appointed to the office in question, or to some other office by virtue of which he would (apart from this subsection) hold the office in question, before the appointed day.

(8)After the day on which a person attains the age of 70, he shall not be appointed or re-appointed as—

(a)F11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F12(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)an assessor assisting with an inquiry under section [F13 61 of the Merchant Shipping Act 1995];

F14(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F15(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F15(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(g)an arbitrator, or (in Scotland) an arbiter, under paragraph 9(2) of Schedule 10 to the M5Electricity Act 1989;

(h)chairman of a tribunal constituted under [F16Schedule 3 to the Education Act 2005];

F15(j). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9)The appropriate Minister may by order—

(a)amend Schedule 5 to this Act by adding offices to those for the time being specified in that Schedule; or

(b)amend subsection (8) above by adding offices to those for the time being specified in that subsection.

(10)As from the appointed day, the enactments and instruments mentioned in Schedule 6 to this Act shall have effect with the amendments specified in that Schedule; but those amendments are subject to section 27 below and Schedule 7 to this Act.

(11)Schedule 7 to this Act shall have effect for the purpose of making transitional provision in relation to persons holding relevant offices immediately before the appointed day; and—

(a)subsections (1) and (3) above are subject to the provisions of that Schedule; and

(b)any reference in this section to the compulsory retirement date for an office shall be construed in accordance with those provisions.

(12)In this section—

  • the appointed day” means the day appointed under section 31 below for the coming into force of this section;

  • [F17the appropriate person” means—

    (a)

    the appropriate Minister in a case which falls within paragraph (a) of the definition of the expression in section 30;

    (b)

    in relation to any judicial office whose jurisdiction is exercised exclusively in relation to England and Wales, the Lord Chief Justice of England and Wales;

    (c)

    in relation to any judicial office whose jurisdiction is exercised exclusively in relation to Northern Ireland, the Lord Chief Justice of Northern Ireland[F18;

    (d)

    the Senior President of Tribunals in the case of a person who holds a judicial office that—

    (i)

    is specified in subsection (12A) below, and

    (ii)

    is not in the person's case an office to which any of paragraphs (a) to (c) above applies;

    (e)

    the Lord Chief Justice of England and Wales in the case of a person who holds a judicial office that is not in the person's case an office to which any of paragraphs (a) to (d) applies;]]

    (f)

    [F19the Scottish Ministers, in the case of a relevant member of the Scottish Tribunals;]

  • the compulsory retirement date” for an office means the day on which a holder of that office is or, apart from any continuation power, would be required by any enactment or statutory instrument to vacate that office, being either—

    (a)

    the day on which he attains a particular age; or

    (b)

    a day falling to be determined by reference to his attaining a particular age;

  • continuation power” means a power conferred by an enactment or statutory instrument on a Minister of the Crown to authorise the holder of an office to continue in that office until a later day than that on which, apart from any exercise of the power, he would be required by any enactment or statutory instrument to vacate that office;

and any reference to vacating an office includes a reference to retiring from it.

[F20(12A)The judicial offices mentioned in paragraph (d) of the definition of “appropriate person” in subsection (12) above are—

(a)Chamber President, or Deputy Chamber President, of a chamber of the First-tier Tribunal or of a chamber of the Upper Tribunal;

(b)judge, or other member, of the First-tier Tribunal or of the Upper Tribunal appointed under paragraph 1(1) or 2(1) of Schedule 2 or 3 to the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”);

(c)deputy judge of the Upper Tribunal appointed under paragraph 7(1) of Schedule 3 to the 2007 Act, except in a case where the holding of the office by the person in question falls within subsection (7)(ga) above;

(d)transferred-in judge, or transferred-in other member, of the First-tier Tribunal or of the Upper Tribunal (see section 31(2) of the 2007 Act);

(e)deputy judge of the Upper Tribunal by virtue of an order under section 31(2) of the 2007 Act;

(f)an office held by a person if the person's holding of the office results in the person being a member of, or person who is, a tribunal in a list in Schedule 6 to the 2007 Act that has effect for the purposes of section 30 of that Act (but only if the office is specified in Schedule 5 to this Act);

(g)F21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(h)member of the Employment Appeal Tribunal appointed under section 22(1)(c) of the Employment Tribunals Act 1996;

(i)member of a panel of [F22Employment Judges] .

(12B)Neither paragraph (d) nor paragraph (e) of the definition of “appropriate person” in subsection (12) above applies to an office held by a person if provision about that person's continuation in the office after the compulsory retirement date for the office—

(a)would be within the legislative competence of the Scottish Parliament if it were included in an Act of that Parliament, or

(b)would be within the legislative competence of the Northern Ireland Assembly if it were included in an Act of that Assembly.]

[F23(13)Where the Lord Chief Justice of England or Wales F24... [F25or the Senior President of Tribunals] is the appropriate person, he must obtain the concurrence of the Lord Chancellor before exercising any functions under this section.

[F26(13A)Where the Lord Chief Justice of Northern Ireland is the appropriate person—

(a)in cases where the relevant office is one specified in paragraph 11 of Schedule 2 to the Northern Ireland Act 1998, the concurrence of the Lord Chancellor must be obtained before any function under this section is exercised;

(b)in any other case, the concurrence of the Department of Justice in Northern Ireland must be obtained before any function under this section is exercised.]

(14)The Lord Chief Justice of England or Wales may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this section.

(15)The Lord Chief Justice of Northern Ireland may nominate any of the following to exercise his functions under this section—

(a)the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002;

(b)a Lord Justice of Appeal (as defined in section 88 of that Act).]

[F27(16)The Scottish Ministers must consult the President of Tribunals before exercising any function arising by virtue of subsection (12)(f) in relation to a relevant member of the Scottish Tribunals.

(17)In paragraph (f) of the definition of “the appropriate person” in subsection (12), and in subsection (16), a reference to a relevant member of the Scottish Tribunals is to an ordinary or legal member of either or both of the Tribunals by virtue of section 15 or 16 of the Tribunals (Scotland) Act 2014.]

Textual Amendments

F1Words in s. 26(4)(a) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 35(3), 148; S.I. 2009/1604, art. 2(a)

F2Words in s. 26(4)(b) substituted (1.10.2009) by Constitutional Reform Act 2005 (c. 4), ss. 59, 148, Sch. 11 para. 4; S.I. 2009/1604, art. 2(d)

F9Words in s. 26(7)(g) omitted (22.4.2014) by virtue of Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 9 para. 95; S.I. 2014/954, art. 2(c) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F11S. 26(8)(a) repealed (25.7.2003 for specified purposes and 29.12.2003 for further specified purposes) by Communications Act 2003 (c. 21), ss. 406(7), 411(2), Sch. 19(1), Note 1 (with Sch. 18); S.I. 2003/1900, arts. 2(1), 3, Sch. 1; S.I. 2003/3142, art. 3

F13Words in s. 26(8)(c) substituted (1.1.1996) by 1995 c. 21, ss. 314(2), 316(2), Sch. 13 para.93(a) (with s. 312(1))

F15S. 26(8)(e)(f)(j) repealed (1.12.2001) by S.I. 2001/3649, arts. 1, 113

F16Words in s. 26(8) substituted (1.9.2006) by Education Act 2005 (c. 18), ss. 61, 125, Sch. 9 para. 7; S.I. 2006/1338, art. 4(1), Sch. 2

F17S. 26(12): definition of "the appropriate person" inserted (3.4.2006) by Constitutional Reform Act 2005 (c. 4), ss. 15, 148, Sch. 4 para. 228(4); S.I. 2006/1014, art. 2(a), Sch. 1 para. 11

F18S. 26(12): paras. (d)(e) in definition of "the appropriate person" inserted (19.9.2007) by Tribunals, Courts and Enforcement Act 2007 (c. 15), ss. 54(2), 148(5); S.I. 2007/2709, art. 2(a)

F22Words in s. 26(12A)(i) substituted (1.10.2013) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 14 para. 13(1); S.I. 2013/2200, art. 3(g)

Modifications etc. (not altering text)

C1S. 26 modified (27.9.1999) by 1999 c. 22, ss. 105, 108(3), Sch. 14 Pt. V para. 25 (with Sch. 14 para. 7(2))

C3S. 26(1) applied (1.1.1996) by S.I. 1995/3192, art. 4(a)

C5S. 26(3)(11) restricted (1.1.1996) by S.I. 1995/3192, art. 4(b)(i)(ii)

C6S. 26(4)-(6) restricted (1.1.1996) by S.I. 1995/3192, art. 5

C7S. 26(5)(6) applied (18.3.2008) by Charities Act 1993 (c. 10), Sch. 1B para. 4 (as inserted by Charities Act 2006 (c. 50), ss. 8, 79, Sch. 3 para. 1; S.I. 2008/751, {art. 2,} Sch. (subject to arts. 3-12))

C8S. 26(5)(6) applied (N.I.) (25.9.2009) by Charities Act (Northern Ireland) 2008 (c. 12) (N.I), ss. 12(2), 185, {Sch. 2 para. 4(2)}; S.R. 2009/324, art. 2

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