If there was much to celebrate amid the continued rise of London as an international disputes centre at Legal Business’ second Commercial Litigation Summit on 24 May, the cloud on the horizon was apparent: the mounting conviction that the UK judiciary is near crisis.
The bench faces growing administrative burdens, earlier retirements, cuts to judges’ pensions and court funding – not to mention far higher earnings on offer for commercial silks. Chairing our debate on the state of the judiciary, Sir Bernard Eder remarked: ’80-100-hour working weeks are nothing to commercial judges.’
Ashurst partner Ed Sparrow picked up the theme, highlighting terrible morale in the 2014 judicial attitudes survey – a report which the veteran litigator branded a ‘terrifying document’ for those concerned with the reputation of the London courts. Sparrow added that thanks to the loss of kudos for judges in austerity Britain: ‘Judges feel that they are treated like assets and I would say sweated like assets.’
If anything a stronger line was taken by Quinn Emanuel Urquhart & Sullivan’s Ted Greeno, who argued that the government saw little wider value in the courts and judiciary and highlighted the own goal of higher court fees, a policy that had been driven by the Treasury and resulted in a drop-off of cases and revenue for the public purse.
Greeno (pictured) told delegates: ‘One High Court judge described it to me as a crisis. A trickle of judges leaving is turning into a flood.’
While the panel generally concluded that the quality of the bench has just about been maintained, the risks are only mounting. Pinsent Masons’ Craig Connal QC noted how it could easily play out if the judiciary deteriorates. ‘Problems will be insidious. It will just slip in to decline.’
That may be an optimistic assessment. For ten years now it has been apparent that a growing number of the top civil advocates are not going to the bench, while it has become less than a freak occurrence for working judges to quit to go back into practice.
The Court of Appeal has been plagued with questions about its calibre and in truth – like the sports fans bemoaning the loss of lustre of their cherished club since the glory days – there are plenty in the Bar who argue that the Supreme Court is a way off the House of Lords’ strongest benches.
The panel highlighted weak lobbying as one problem in terms of getting the profession’s concerns across to government.
In this they are undoubtedly right, given that the legal professional couldn’t lobby its way out of a paper bag.
One response may be to bring in a respected independent agency to conduct research into the economic contribution of the courts. But that will only get you so far without effective, strategic lobbying.
Too often the profession gets caught up in whether it will appear self-interested. That is irrelevant. Governments give in to self-interested industry lobbying all the time; what they brush aside is divided and weak advocacy.
Alternatively, the profession could wait for the austerity and the mood at the Treasury to pass. But it looks increasingly doubtful that the bench can wait that long without being materially diminished.