Every autumn hundreds of English and Welsh judges wearing horsehair wigs and robes of scarlet, gold and black proceed into Westminster Abbey for an annual service dating back to the middle ages when they prayed for divine guidance at the start of each legal year.
Despite such respect afforded one of the most prestigious professions, fewer top lawyers appear willing to sit on the bench. The 108-strong High Court is currently 10judges short and it has rarely been full since 2015.The number of vacancies changes almost weekly but in July 2018, for example, the High Court was 15 judges short.
Lord Burnett, the lord chief justice of England and Wales, told judges at a dinner in July: “This year, we are seeing the problem in filling vacancies in the High Court and the circuit bench, extend to the district bench.”
In the UK judges are not political appointees but selected on merit by an independent commission. Top lawyers are usually attracted to sit on the bench because of its high prestige, public service ethos and the prospect of shaping the law. A generous pension was another draw for many self-employed barristers even though the £188,901 salary is paltry compared to the £1m those at the top of the profession can earn.
But a 25 per cent cut in funding to the justice system since 2010-11 has dulled the position’s allure. A less generous judicial pension scheme introduced for new judges in 2015 led to more than 240 judges suing the government. They argued that judges born after April 1957 were being treated less favourably than older colleagues.
In August, the judges finally won their case and an employment tribunal in October made an interim order which effectively put the newer judges in the same position as their older peers.
They have often found themselves sitting next to other older judges with the same or less experience than them who are effectively paid more because they get a better pension
The government’s Senior Salaries Review Body concluded in a
2018 report that “unprecedented” judicial recruitment problems were because of pay, pensions and conditions. It concluded that the changes to tax and pensions meant that take-home pay for a new High Court judge was worth £80,000 a year less than it was a decade ago. The body recommended a pay rise.
Shubha Banerjee, a solicitor at Leigh Day, which represented the judges at the employment tribunal, said: “With the changes to pensions, they have often found themselves sitting next to other older judges with the same or less experience than them who are effectively paid more because they get a better pension.”
The government announced temporary measures to tackle the recruitment shortage — in the form of an interim payment. For High Court judges affected by the pension changes this includes an allowance of 25 per cent of salary — around £47,000.
“Our independent judiciary is the cornerstone of the rule of law and effective remuneration is important in attracting and retaining high calibre judges,” the MoJ said.
Funding cuts have also led to a deterioration in court buildings; a judicial attitude survey in 2016 showed 75 per cent of judges in England and Wales thought working conditions had worsened since 2014.
“The levels of pay have dropped and the working conditions of the judges have really changed quite dramatically with judges hearing more cases in court buildings which are in a poor condition, with falling masonry and broken toilets,” said Caroline Goodwin QC, chair of the Criminal Bar Association. “Why would you want to do it?”
Jan van Zyl Smit, senior research fellow at the Bingham Centre for the Rule of Law, an independent research centre, said cuts to legal aid meant judges, particularly in family cases, were facing a surge in people representing themselves in court. “They [judges] can’t just sit back and umpire cases — they have to guide them through the process,” he said.
Lord Burnett, the Lord Chief Justice, has also spoken about an increasing “torrent of personal abuse” being directed at judges, including on social media. He recently introduced a support service to help judges hearing traumatic cases.
Judges have even faced an increase in violence. In November 2017, for example, an aggrieved litigant in one divorce case was jailed after he rugby-tackled a judge, Robin Tolson QC, on a London street.
Lord Burnett told the House of Lords constitution committee this year that a 2016 survey on judicial attitudes showed only 2 per cent of judges felt valued by government. “There was worry about the state of our buildings, in particular, and increased workload,” he told peers.
Some judges were further alarmed in 2016 when Liz Truss, the then lord chancellor, failed to defend three judges dubbed “enemies of the people” by a tabloid after they ruled on a Brexit-related case.
There are signs that steps to address recruitment issues might be starting to bear fruit. Several High Court judges recently recorded videos about their experience. Mrs Justice Carr praised the “sheer variety and stimulation” of the “very privileged” role and Mr Justice Birss discussed the satisfaction of “giving something back” through public service.
And Lord Burnett, the lord chief justice, said in his most recent annual report last month: “We are not yet back to full strength, but I am optimistic that the position is on the mend.”
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