Britain might run out of top-class judges

26 January 2019

9:00 AM

26 January 2019

9:00 AM

When I was called to the Bar in 1967, the aim was to be appointed as a judge to the High Court. It was the destination to which all ambitious barristers not only should but would aspire. The job offered security, the conventional knighthood, an avenue to public service and a modicum of public power. But there is now an unprecedented and growing shortfall in candidates of adequate quality. Where did it all go wrong?

This development hasn’t appeared from nowhere. When I was a member of the Senior Salaries Review Body (SSRB), which independently reviews judges’ pay, we noted in 2002 that: ‘Top legal practitioners who in the past would naturally have progressed to the bench are increasingly questioning whether they wish to do so.’ Even then, QCs had already started to identify better opportunities in the City or on campus. Since then, the discrepancy in pay between High Court judges and successful QCs has widened. Rumour has it that only one appointee has ever earned more after becoming a judge. Like those whose salaries come from the public purse, judges’ incomes have all but frozen in real terms, while the pay packets of top barristers have rocketed.

Meanwhile, the status of judges has been diminished, as have the traditional compensations for earning less than barristers. The job of a judge is now characterised by greater workloads and inflexible hours, deteriorating infrastructure and declining administrative support.

Much of the circuit pomp and ceremony has also vanished. In 1942, the judge of Assize in Hare’s Tragedy at Law lamented that there were ‘No trumpeters!’ to announce his departure. Today, his successors are reduced to complaining about, for instance, Sky TV being removed from the judges’ lodgings, after the former justice secretary Chris Grayling decided that the Ministry of Justice could no longer spare the expense.

Even the country’s highest offices have been debased. Under the Constitutional Reform Act 2005, which was inspired by a rigid fidelity to the concept of separation of powers, the position of Lord Chancellor was stripped of its judicial functions, and the requirement for the politician even to have a legal qualification was removed.

This means that the ancient name bestowed upon the Minister of Justice is now a piece of anachronistic whimsy. Under the changes, the office is no longer the summit of a distinguished lawyer’s career, but a stepping stone for a career politician. As a result, judges no longer have a voice of one of their own around the cabinet table. Liz Truss, the first non-lawyer Lord Chancellor, was rightly criticised for her tardy response to the excoriation of the Article 50 judges as ‘enemies of the people’. The Lord Chief Justices, heads of the judiciary in England and Wales, have been a formidable voice in the judges’ defence, but they can do this only as outsiders.

Meanwhile, there has been a breakdown of trust between the executive and the judiciary. Recently, senior judges even had to mount a case against the MoJ for age discrimination in their pension arrangements. They had accepted appointments on terms which the MoJ later revised to their disadvantage, by which time they were unable to supplement their income or return to the bar.

The Constitutional Reform Act also established a Judicial Appointments Commission (JAC), which became, in fact if not in form, the selector of new judges. But the bureaucratic nature of its process is itself discouraging new recruits. It is even worse for aspiring silks (QCs) or Recorders (part-time judges) who are reduced to filling in masses of forms and online tests before they even get to interview. A candidate preparing for an application to the bench is now warned that it will ‘draw significantly on their time’. Referees have to cudgel their brains to provide specific examples of an applicant’s commitment to diversity or to show they have ‘no known prejudices’.

Fortunately, the standard of those recently appointed to the bench has not fallen but there are many who would be excellent candidates who nowadays do not apply because of the extreme amount of paperwork. I could name without difficulty a dozen, including four Oxbridge serving heads of house, who have been put off. It is very possible that either standards will have to be lowered, or the UK legal system will face a crippling shortage of judges in the years ahead.

At a more senior level, governmental measures mean that well-seasoned judges are leaving the profession earlier than they might. In 1993, the mandatory judicial retirement age was reduced from 75 to 70. One solution to the inevitable shortfall of judges would be to restore or even remove the mandatory judicial retirement age. A reversion to the maximum age of 75, certainly for the Courts of Appeal, has powerful supporters. It is regrettable, for example, that the polymathic Lord Sumption was compelled to step down last month while he was still in his judicial prime. After all, Ruth Bader Ginsburg still sits on the US Supreme Court with distinction at the age of 85. Lord Bridge, the Senior Law Lord, once lamented that ‘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’. Now that judges must retire even younger, the phrase ‘statutorily senile’ has become a self-mocking quasi-legal cliché.

Last year, the SSRB recommended as a partial palliative a 32 per cent pay increase for those judges adversely affected by the recent changes in their pension scheme. The government’s opening counter bid was a mere 2 per cent. Only the least numerate or most insouciant of silks will not see this widening gap between private and public pay. But there are, it seems, no votes in being kind to the senior judges, whose work was nonetheless described by the JAC as ‘fundamentally important to society’. Not least in the era of judicial review, where so many issues once thought appropriate for the legislature have migrated to the courts.

The Lord Chief Justice has described the situation as ‘unsustainable’, but it looks for the moment as if it is insoluble too. Fewer or lower-quality judges is not even a Hobson’s choice. It is not an acceptable choice at all.

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