Cumulative cuts to the Ministry of Justice (MoJ) budget over the past decade, amounting to 40% in total, have had a profound impact on the UK’s publicly funded legal system. One corollary is that there are too few senior judges. First and foremost, this is because insufficient candidates of quality have applied to become a High Court judge.
‘There seems to be a continued problem with recruitment, not in terms of quality, but in terms of numbers,’ says former chair of the Bar, Chantal-Aimée Doerries QC. Recognised as a perennial problem by the government, a streamlined application process was introduced last year. But this has done little to help. Vacancies remain across all three divisions: Queen’s Bench (QBD), Family and Chancery.
‘The Judicial Appointments Commission (JAC) is faced with the unedifying choice of not filling all the vacancies as they come up, or with lowering standards,’ says Lord Neuberger, former president of the Supreme Court. ‘I take my hat off to them for making what is claimed as the right decision, which is not to fill the vacancy rather than lowering standards.’
Before his retirement as Lord Chief Justice, Lord Thomas said that he and many of his colleagues were ‘immensely concerned about the serious loss of morale across the judiciary and continuing dissatisfaction over working conditions, the volume of work, and pay and pensions’. He was one of several senior judges to highlight the adverse impact of these issues on judicial recruitment. ‘A lot of credit goes to Lord Thomas in terms of the work he did in getting the message across to the government,’ says Joe Smouha QC, former chair of the Commercial Bar Association (COMBAR).
Long overdue
To address the issue, the main recommendation of the Senior Salaries Review Body (SSRB)’s Review of the Judicial Salary Structure, published in October 2018, was that High Court judges should be awarded a 32% pay increase, taking their annual remuneration from £181,566 to £240,000 a year. In one of his last acts as Secretary of State for Justice, David Gauke outlined the government’s response. His letter, published in June 2019, acknowledged the extent of the recruitment problem and its primary causes: insufficient remuneration and reforms to judicial pensions.
‘People who make criticisms about the job are those who, for whatever reasons, don’t want to go on the bench.’ Lord Dyson
The letter noted: ‘The SSRB’s Review identified clear evidence of severe recruitment and retention issues in the High Court, and of growing problems at the Circuit bench and similar issues in the Upper Tribunal. For the first time ever, in consecutive recruitment campaigns, we have now failed to fill vacancies in the High Court and at the Circuit bench. Currently more than 10% of High Court judicial positions remain unfilled and, as things stand, the Chancery Division of the High Court, which handles major commercial cases, is already 20% below strength and will be up to 40% below strength by the end of the year without urgent action.’
Gauke’s remedial action involved a ‘temporary’ recruitment and retention allowance for High Court, Circuit and Upper Tribunal judges: 25% of salary for High Court judges and above, and 15% of salary for judges below the High Court. The new allowance replaced the existing 11% allowance introduced for High Court judges in 2017. Meanwhile the pensions issue was separately resolved by the landmark McCloud judgment on civil service pensions, which was accepted by the government last July. After a lengthy consultation process, this should ultimately result in upward pension adjustments for every judge.
‘The long overdue increase to pay and recognition of the discrimination over pensions will hopefully assist judicial recruitment.’
Sonia Tolaney QC
Sonia Tolaney QC, chair of COMBAR, suggests that Gauke’s announcement was ‘a recognition of the importance of our judiciary and the value that our judges provide. The long overdue increase to pay and recognition of the discrimination over pensions will hopefully assist judicial recruitment’.
Seven new High Court judges were announced last August: Frances Judd QC, Jennifer Eady QC, Alison Foster QC, John Cavanagh QC, Pushpinder Saini QC, Jeremy Johnson QC and Martin Chamberlain QC. However, it was conceded that these appointments ‘only served to fill vacancies in the High Court following elevations to the Court of Appeal and confirmed retirements’.
Further progress came in October when it was further announced that Nicholas Hilliard QC would become a High Court judge the following month and that it was ‘anticipated that a further six appointments will be announced in the coming months’.
But despite Gauke’s assurances, bench strength remained at the same nadir as before: more than 10% of High Court judicial positions were still unfilled at the end of 2019. With a full complement of 108, that means that the High Court was 12 judges short. Compared to the end of 2018, the QBD’s headcount had increased by two judges to 67 while the Family Division was up a net one at 17.
As anticipated by Gauke, the most critical issue was the Chancery Division. Having gained only one new appointee in 2019, Sir William Trower, and losing two judges to the Court of Appeal and three to retirement, the Chancery Division ended the year down by a net four to only 12 judges. Without further details of the six appointments outlined by the JAC, notably whether any are in the Chancery Division, it is unclear when the dramatic shortfall in judicial headcount might turn a corner.
‘In commercial, there are some incredibly able appointed deputies who are prepared to do the job part-time, presumably with a view to thinking about whether they want to do it longer term.’
Helen Davies QC
To plug the gap, an increasing number of deputy High Court judges (who sit part-time) have been appointed – 24 in November 2019 in addition to the 32 appointed in 2018. The idea is to let people have a taste of what it is like to be a judge and then decide whether it appeals to them. Alongside their barrister counterparts, an increasing number of appointees are solicitors.
‘In the commercial field, if you look at the names of those who’ve been appointed (as deputies), you are still seeing some incredibly able people who are prepared to do the job on a part-time basis, presumably with a view to thinking about whether they want to do it longer term,’ says Helen Davies QC.
‘Doing something worthwhile’
The vast majority of judges appointed to the Chancery Division invariably come from barristers doing the best-paid Chancery and Commercial work. The enormous pay differential is self-evident, acting as a deterrent factor for many in considering whether or not to become a judge.
As far back as 2004, when Dame Elizabeth Gloster was first appointed, The Guardian ran a provocative headline: ‘QC takes £2m cut to be High Court judge’. And a decade before Lord Sumption was elevated directly from Brick Court Chambers to the Supreme Court in 2011, he wrote a letter to the same newspaper: ‘You have accused me of the horrid crime of earning as much as eight High Court judges and 69 refuse workers put together. I admit it… I earn what I do because that is what my services are worth to the people who pay for them.’
But barristers also point to factors beyond money. ‘Those of us who have sat as a deputy High Court judge also have to write judgments that can be extremely difficult and time consuming,’ says Laurence Rabinowitz QC, who is also a former chairman of COMBAR. ‘Whereas part-time judges can make time available to do that, full-time judges cannot generally do so.’
He adds: ‘If you give judges support – high quality, very intellectually able lawyers who can help them with some of the work that they are doing in terms of looking at the law, looking at the first draft – that alleviates their burden and makes the conditions of employment that much better. Even if you don’t increase the amount of money they are getting, that’s going to make a huge difference.’
He points to the Judicial Assistant Scheme, which was launched in May 2019, as an invaluable step in the right direction to achieve this. Twelve judicial assistants (JAs) are now assigned to judges of the High Court across the three divisions. According to the MoJ, they ‘assist the judge(s) to whom they are allocated, for example by carrying out research, summarising documents and providing general support for the judge(s) in the organisation of their work and hearings’. JA placements last between three and five months during the 2019-20 legal year with recruitment for the equivalent of 12 full-time appointments.
Lord Dyson, a former Master of the Rolls, is something of an evangelist about being a judge. ‘It’s a wonderful job,’ he says. ‘You feel you’re really doing something worthwhile, deciding interesting cases, and maybe making a bit of law and pushing things along a bit. I’m always interested when someone goes on the bench. After a while, I ask them how they’re getting on and if they’re enjoying it. They always tell me they love it and there’s no reason why they should say that if it’s not the case. They love it for the reasons that I loved it: the work is so interesting and varied. People who make criticisms about the job are those who, for whatever reasons, don’t want to go on the bench.’
Anyone thinking about the possibility of being a judge should have a quiet word. LB