Judges have said they will go back to being lawyers because their pensions are to be cut by more than a third. Their decision puts them on a collision course with the lord chancellor, Chris Grayling, who regards the judiciary as a job for life.
Full-time judges are barred from legal practice while in post. Their terms of service add: ‘The lord chancellor also regards a judgeship as a lifetime appointment. Any offer of appointment is therefore made on the understanding that appointees will not return to practice.’
But the lord chief justice is reported to have told the the review body on senior salaries that judges are now prepared to defy this ‘understanding’ if their pensions are reduced. A passage from the review body’s latest annual report summarises written evidence from Lord Judge. It says the strength of feeling among judges was such that over 1,200 had responded to the government’s recent consultation on changing the judicial pension scheme.
The lord chief justice told the review body that some judges in England and Wales ‘had indicated that they would resign before the changes became effective on 1 April 2015 if they did not qualify for relief, as they considered that the conduct of the government in unilaterally reducing the remuneration of judges would discharge them from any obligation given at the time of their appointment not to return to legal practice’.
Although the lord president of the Court of Session and the lord chief justice of Northern Ireland were not aware of any judges in their respective jurisdictions who were threatening to resign, the senior Scottish judge told the review body that it would be ‘unprecedented and in his view highly undesirable’ for a senior judge to return to practice. Those views are likely to be shared in England and Wales. Resignations would damage morale among the remaining judges and discourage practitioners from joining the bench.
Although practising lawyers sit as part-time judges and many former judges sit as arbitrators or mediators, it has always been regarded as controversial for judges to give up a full-time post and return to where they left off. A former judge might appear before a court whose members the former judge had previously overruled. Having a former judge around the partnership table might be seen as giving a solicitors’ practice an unfair advantage.
Even if these fears are not justified in practice, there would be a public perception that things were not as they should be. Eyebrows were raised when Lord Sumption argued a case in the High Court after his appointment to the Supreme Court was announced in 2011.
In 1970, there was consternation when Sir Henry Fisher resigned from the High Court after less than three years on the bench, even though he regarded himself as temperamentally unsuited to the job. However, there was no such reaction last month when it was announced that Sir Nicholas Stadlen, 62, was retiring after five years in the High Court because of his wife’s ill-health. He has not returned to practice at the bar.
In his evidence to the salaries review body, Judge expressed his concern that ‘by making it harder to recruit the best judges, the changes could affect the quality of the justice system, including its ability to attract international business which contributed to the national balance of payments’. He believed it was wrong to offer only those judges closest to retirement the opportunity to stay in the existing scheme while changing the pension arrangements of those who had joined the judiciary more recently. Actuarial evidence obtained by the judiciary showed that judges would see a reduction in pension benefits of between 34% and 46% for service after April 2015.
Recommending a rise of 1% in judicial salaries from April 2013, the review body said it was more concerned about the impact of the government’s pay policies on the judiciary than on senior civil servants and the armed forces.
It noted that successful applicants to the High Court bench typically suffered a cut in earnings of 59%. The current pension scheme could not bridge the financial gap between private practice and public service but it had ‘a psychological impact well beyond its financial value, signalling acknowledgement of what had been given up for ever and marking public respect for the judiciary as an institution’.
While the review body thought there would still be senior practitioners willing to join the judiciary, ‘the combination of the reduction in the value of the pension and prolonged pay restraint will result in a tipping point when there will be too few of the right quality willing to make the transition’. The review concluded, ominously: ‘We believe we may be at that tipping point now.’