Who wants to be a High Court judge?

Our judges – just how much are they worth? It’s a question that has long exercised the minds of successive governments. In a recent report commissioned by ministers, the Senior Salaries Review Body (SSRB) recommended that High Court judges in England & Wales should be awarded a 32% pay increase, taking their annual remuneration from £181,566 to £240,000 a year. Meanwhile the SSRB also suggests that circuit judges should see their salaries increase to £165,000 – a 22% jump. These recommendations, which became public in October, have caused predictable outrage from unions representing other public sector employees.

They are not alone in their condemnation. The SSRB letter outlining the recommendations was initially leaked to the Daily Mail. After its infamous “Enemies of the People” headline in 2016 – castigating the then Lord Chief Justice, Lord Thomas, Master of the Rolls Sir Terence Etherton, and Lord Justice Sales, for their Article 50 decision – the Mail instinctively declared its vehement opposition to the proposed pay rise in another blazing headline: ‘Where is the justice in that?’ The sub-headline fulminated: ‘As Mail reveals judges are set for thumping £60,000 pay rises while the rest of us watch every penny.’

At first blush, the case against such a large increase for judges might  not just seem compelling, but overwhelming. As a result of the government’s austerity policies, public sector pay was frozen for two years in 2010 and 2011, save for those earning less than £21,000 a year. Annual rises were then capped at 1% from 2013 onwards – below the rate of inflation – until last year when the cap was finally lifted.

However, subsequent pay increases have also been extremely modest: last year, police officers got a 1% rise plus a 1% bonus, prison officers received a 1.7% rise while NHS staff are getting an average rise of 6.5% over three years. This summer, the government announced further rises: 2.9% for armed forces personnel, 3.5% for teachers and 2% for doctors and dentists.

Yet the problem is more complex than such simple comparisons might suggest.

There are 1,840 judges in England and Wales of whom 97 are High Court judges – (16 Chancery Division, 16 Family Division, and 65 Queen’s Bench Division); 72 are male and 25 female. The proposed 32% pay increase would create an additional annual cost in their combined salaries of £5.67m while a 22% uplift for the 600 or so circuit judges would add a further £12m. Accounting for 550 district judges, who are recommended an 8% increase, those who sit on tribunals, deputies, as well as a handful of judges in the Court of Appeal and Supreme Court, and the total extra bill is around £25m a year – less than the typical combined annual salaries for the eleven players fielded by an average Premier League football team.

Of course, footballers are employed in the private sector whereas judges’ salaries are paid by the taxpayer. As a result, their average annual earnings – £2,642,508 per Premier League player, according to Sportingintelligence’s Global Sports Salaries Survey – are beyond reproach for the media. And what have footballers got to do with judges anyway? Putting aside the moral question of who provides the greater benefit to society – until 1961, Football League clubs imposed a £20/week maximum wage cap on every player – no club could ever hope to attract the most talented footballers without paying the market rate for the skills that they provide.

The same supply-demand issue is adversely affecting judicial appointments. There are vacancies on the High Court bench, but a continued shortage of talented lawyers put themselves forward to fill them. Without football players, there is no game. And without judges? With a complement of 108, the High Court is currently ten judges short. The judicial squad has been running below full strength for several years. In 2016, there were 14 vacancies and six posts were left unfilled, last year there were eight vacant slots. The circuit bench faces a similar problem: In 2016, 11 out of 55 vacancies could not be filled; last year, it increased to 12.

Before his retirement, Lord Thomas said that he and 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 added that continued failure to address the problem of pay would have a serious impact on recruitment.

The problem is not just about pay. Pension changes also play a part, as do working conditions with judges enduring insufficient quality of available resources. Unlike cabinet ministers, they have nothing like the calibre of support provided by senior civil servants. The current Lord Chief Justice, Lord Burnett of Maldon, recently said: “No one applies [to be a judge] unless they have a sense of public duty – that is the reality. The last survey on the gap between private practice earnings and judicial salaries showed that it was inevitably very large indeed.”

A combination of working conditions and tax changes to pensions may have helped to provoke a judicial recruitment crisis, but above all, that gap is the central problem. Talk to QCs at the Bar’s Premier League chambers – Brick Court, Essex Court, One Essex Court, Fountain Court and Blackstone – and not one of them openly expresses any desire to become a High Court judge. And why would they? These men and women earn similar amounts to their footballing counterparts: typically between £2m and £4m a year. While these QCs may comprise a relatively small elite, the point is no less valid for several hundred successful silks across the Bar who earn more than £500,000 a year: dropping down to £181,566 is a big reduction.

In 2004, when Elizabeth Gloster QC was appointed, the Guardian headline ran: QC takes £2m cut to be High Court judge. A handful of other top drawer silks have since sacrificed huge earnings in order to assume judicial office. Most prominent among them, Jonathan Sumption QC was elevated directly from Brick Court Chambers to the Supreme Court in 2011. A decade earlier, he wrote a letter to the Guardian: “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.”

So how much are judges’ services worth to the taxpayer? Although their annual salaries are indeed very high in comparison with other public sector employees, they are dwarfed by the earnings of many top flight barristers from whose ranks they are primarily drawn. Like the Bar, the judiciary has moved on from being a rarified gentlemen’s club: three women now sit among the twelve judges on the Supreme Court, for example. The current President is Baroness Hale. But the enormous disparity in earnings between the Bar and the bench has grown to such an extent that insufficient numbers of men or women of the right quality are applying to become judges of the future.

Theresa May and Justice Secretary, David Gauke, received the SSRB report in September. Although it is highly unlikely that they will agree to 32% pay rises, without some significant uplift in judges’ salaries, the judicial recruitment crisis will only get worse. Lord Burnett recently said that because vacancies are not being filled, there was a real prospect that the High Court would have to operate at 20% below its 108 judge complement. Meanwhile a recent survey of 1,500 judges revealed a “strong level of disenchantment”: only 2% felt valued by the government and just 3% by the media.

Domestically, an overstretched team of demoralised and undervalued judges increases the likelihood of more (very expensive) miscarriages of justice arising in the future. Nevertheless, England is still recognised internationally as the world’s premier jurisdiction in which to litigate. Disputes involving many billions of pounds are fought over in London’s commercial courts, largely because of the depth and breadth of high quality judges. Without more world class appointees, however, that might change – like a Premier League club with insufficient star players, demotion could soon follow.

 

Dominic Carman

Written by:

Dominic Carman, journalist, writer and legal commentator.
www.dominiccarman.com