Having good judgement is one thing that the judiciary should be good at. But deciding cases is not nearly as difficult for judges as maintaining public confidence in the judiciary. And that requires considerable sensitivity to the public mood.
No doubt that was why the president of the Supreme Court decided to stonewall some of my questions this month when I interviewed Lord Neuberger in his courtroom for my Radio 4 programme Law in Action. I had grounds for believing he might have been willing to explain the effect of repealing the Human Rights Act or withdrawing from the European Convention on Human Rights. But those policies had been espoused by two leading Conservative ministers just a day before we recorded the programme. Neuberger was unwilling to be drawn, both because details were sparse and because these were matters of ‘high policy’.
On the other hand, he was willing to respond to an accusation by the home secretary that judges were subverting democracy by making law, a job Theresa May regarded as one for parliament. Ministers attacking judges was not a ‘happy situation’, the judge told me. ‘First of all, it’s not fair because judges can’t answer back. Secondly, it’s not sensible.’ If a minister was unhappy with a judgment, the right thing to do was appeal. Failing that, parliament could change the law.
I suggested to Neuberger that the best person to speak up for judges these days was the president of the Supreme Court. ‘I think the right thing for me to do is to express my view quite clearly that it’s unfortunate that the home secretary has spoken as she has done,’ he replied, ‘but not to get into a slanging match – because that’s precisely what I’m saying should not be done.’
As Neuberger’s interview demonstrated, judges can answer back if they choose to. We saw this last week in Northern Ireland, where unionist politicians have accused the judiciary of being more willing to grant bail to republicans arrested after recent demonstrations than to loyalists. In court, Mr Justice McCloskey said that ‘ill-informed debate’ about bail decisions could undermine the rule of law. That generated further criticism from finance minister Sammy Wilson, who accused the judge of being ‘nothing more than a highly paid civil servant’.
It is a sign of how edgy things were getting that the lord chief justice of Northern Ireland, Sir Declan Morgan, responded to political criticism by giving a television interview to the BBC. But instead of criticising Wilson for implying that judges were no more independent of government than the minister’s own officials, Morgan chose to interpret Wilson’s remarks more cannily. ‘I have absolutely no difficulty with someone branding me a civil servant,’ he said. ‘In fact, I’m honoured to be a servant of the public, as I think is the case for all of my judges.’
In London, meanwhile, the government has announced major cuts in judges’ remuneration. Reports suggest that the pension of a High Court judge will be reduced from a lump sum of £173,000 after tax plus £86,500 a year, to £75,000 a year and no lump sum. A circuit judge’s annual pension will be reduced from a lump sum of £144,000 plus £64,000 a year, to £55,000 a year and no lump sum.
These figures assume 20 years’ service. To clock up that before retiring at 70, a judge would have to be appointed by the age of 50. But a full-time judicial appointment involves a considerable pay cut for most lawyers. To make up for these pension cuts, judges will have to continue working as lawyers for longer. And that means an even lower pension. They will also have to pay more tax.
Needless to say, judges are far from happy. They could argue that they would not have joined the bench if they had known that their remuneration would be cut. They could argue that the best lawyers will now think twice about accepting a judicial appointment. They could even argue that cutting judicial remuneration is unconstitutional.
But the judiciary is saying none of these things, in public at least. Senior judges know that ministers are unlikely to change their minds. And they realise they will attract little sympathy at a time when businesses are failing and people are losing their jobs. So they have decided to keep quiet.
It is difficult to criticise their short-term tactical judgement. But judges should leave the public in no doubt where all this is heading. Future historians will no doubt date the steady decline in legal services from the legal aid cuts that start next month. Perhaps April 2013 will also mark the beginning of a steady decline in the quality of the judiciary.