One of the last things I did before retiring as a judge last July was to complete the lord chief justice’s second Judicial Attitude Survey. He alluded to the findings in his third annual report to parliament last October, when the Gazette reported ‘a crisis in the courts which is sending morale in the judiciary plummeting and inhibiting recruitment’.
Now, with the publication of the survey, the cat is properly out of the bag and the summary reported by the Gazette (tinyurl.com/zk2ylpw) is sobering indeed. The apparent breakdown of the relationship between the executive and the judiciary is indicative of an unprecedented constitutional crisis. This has been exacerbated by the ill-informed outbursts of the media over the Article 50 litigation and by the failure of the secretary of state for justice adequately to prioritise her duty to support the judges over her fear of the Daily Mail.
However, perhaps the clearest signal that something has gone gravely wrong is the successful discrimination claim brought in the Employment Tribunal by 210 serving judges against the justice secretary and the Ministry of Justice over pension ‘reforms’. Press reports focused on the involvement of six High Court judges to the exclusion of circuit, district and tribunal judges who made up the great majority of the applicants.
The report of the case reminds us that when the pension reforms were put in place in 2012, with effect from 2015, there were 1,123 salaried judges unaffected, save by the imposition of contributions towards what had been a non-contributory scheme; 294 younger judges who would be moved into the scheme at various times after implementation under the tapering provisions; and 279, younger still, who would be retrospectively deprived of the pension provision in force when they were appointed and instead enrolled in the much less generous replacement scheme. The extraordinarily high proportion of those judges prepared to sue the government indicated the strength and depth of judicial anger and anxiety aroused by the reforms. Additional tax charges on contributions significantly reduced the value of their pensions for the best paid, rubbing salt into the wounds of young High Court appointees.
Analysis of the financial impact on the applicant judges can be found elsewhere, including the summary in the report of McCloud and Mostyn and Others v The Lord Chancellor and Ministry of Justice. My purpose is to outline how we have got to this point and identify some of the main actors.
We must start with Tony Blair. His falling out with, and dismissal of, his former pupil master and lord chancellor, Derry Irvine, in 2003 might have been an inconsequential political execution save for the throwing out of the bathwater with the baby. The transformation of the lord chancellor into but one facet of a non-judicial secretary of state, sitting in the House of Commons, was revolutionary in the constitutional context of the relationship between judges and government, and the present discord and litigation is a direct, if unforeseen, consequence.
The only remedy is to dismantle the county court system in place since 1846 and replace it with an untried and hugely ambitious online justice system where personal interaction between judge and litigant is the exception to the rule
Although the constitutional concord subsequently entered into between Lord Woolf for the judiciary and Lord Falconer for the government guaranteed judicial independence and adequate resourcing of the courts, the ability of an old-style lord chancellor to stress and protect these essentials at the cabinet table was lost. Ministers, in thrall to either or both of populism and ideology, are not well placed to prioritise such decidedly non-sexy issues.
It was, of course, inevitable that the culture of austerity would impact adversely on the judiciary and the court system. Here was a sizeable cohort of highly paid lawyers operating through a widely spread, expensive and crumbling infrastructure and supported by substantial numbers of staff. The concept of local justice was seen as an expensive luxury which could not be sustained in adverse financial conditions. Centralisation and computerisation were the new essentials. Escalating court fees and the (all but) abolition of legal aid in family cases would deter citizens from using the courts. The reduced throughput of cases would, in turn, justify closures and the reduction of the workforce at all levels. The poverty of statistical information available to the MoJ could be used to advantage in such circumstances, as could highly optimistic assumptions about the availability and affordability of public transport. The High Court, as the jewel in the crown of the English legal system, and a substantial source of invisible earnings for the economy to boot, was off-limits, so the axe was wielded against county and magistrates’ courts, their staff and their judges.
You may think all that rather hysterical, but that is how it seemed to this former judge from about 2012 onwards.
The general situation was made worse by the apparent inability of the judicial leadership to appreciate the concerns and worry of their colleagues at the bottom of the hierarchy arising from the wilful erosion of local justice. My generation of district judges was professionally dedicated to the effective provision of local justice, as were local magistrates.
Faced with the unfair and discriminatory imposition of the new pension regime, there should have been a more overt protest by the then lord chief justice, Lord Judge. Of course, little public sympathy could be expected concerning the remuneration of such well-paid individuals, but the retrospective imposition of the pension changes was a stark matter of principle. There was no particular reason why the government could not legislate to reduce pension entitlements for judges appointed thereafter. This was the course taken in 1993 when the second Judicial Pensions and Remuneration Act added five years to the service required to achieve a full pension (from 15 to 20 years) and imposed mandatory retirement at 70.
With hindsight, it seems clear that the ambitious and ideological secretary of state, Chris Grayling, factored in to his approach that the judiciary would lack the collective nerve actively to fight their corner. He knew this from the outset when he introduced, without any meaningful challenge, pension contributions: no serving judge could argue that this was ‘unfair’ and if it was, in fact, an unconstitutional arbitrary reduction of judicial salaries, the public would not raise an eyebrow. The judiciary also had before it the example of Irish judges, who in a far more severe financial storm had accepted swingeing pay cuts.
Juggernaut of reform
While the judiciary put in place a committee of unrivalled expertise to consider, analyse and report to the troops on the nature and consequences of the changes, this was not a dog employed to bark. Litigation on behalf of those most severely affected (mainly the applicants in the ET) was mooted but, as a whole, the judiciary had no appetite for either court-based confrontation with the government or the expense of proceedings. Indeed, one of the points raised by counsel for the respondents in McCloud, in support of the government’s case, was that it represented the first attempt by any judges to stand in the path of the juggernaut of pension reform.
Until the decision in McCloud, it appeared that the willingness of the secretary of state to adopt a confrontational approach towards judges had been vindicated and some £70m of pension expenditure avoided.
It would be a supreme irony if the revolt of the junior judges, successful at first instance in the ET, were to result in the rolling back of the new pension scheme. The executive would have gained nothing but at the expense of the poisoning of its relations with the judiciary for a generation, and provoking what may prove to be an oncoming avalanche of retirements and long-term ill-health absences, leading to a recruitment crisis across the board, particularly at the higher levels, which would undermine the effective operation of the courts in this jurisdiction.
Reverting to the situation in 2003, one can only speculate whether this distasteful situation would have been avoided had there been a ‘proper’ lord chancellor within the executive and in the cabinet. Would not the government then have had to settle for the Judicial Pensions and Remuneration Act 2013?
While many district judges of my generation saw an increase, often substantial, in their pay upon appointment, it has always been a different story for the High Court bench. For them, the prize for eminence and excellence in their professional careers, has been: the satisfaction of being able actively to influence the development of the law by their decisions; the ability to find new areas of interest for their expertise; and the trade-off of (often very) high income and (consequentially, often very) high pressure in their first career against a guarantee of high status and a generous pension. The removal of the latter thus threatens the recruitment of the best to the High Court bench: in McCloud at paragraph 57, counsel for the MoJ made reference to proposed recruitment and retention allowances to compensate for busted pensions and encourage applications to fill vacancies (there were at least six at the date of writing). Leaving aside the special circumstances of the High Court judges, most lawyers appointed as judges come from the ranks of the self-employed, so the generous judicial pension was always an important factor in recruitment.
At the lower levels, as the survey of attitudes reveals, 42% of judges in post would quit if they could and 37% of court, as opposed to tribunal, judges intend to quit in the next five years, perhaps on completing their 20 years or attaining retirement age.
The reasons for this malaise are various, but can be summarised as the consequences of under-investment by government in court workers, staff and judges, and their workplaces. For every Crown court equipped with shower rooms for judges, there is a county court where the toilets are never properly cleaned. For the MoJ and its acolyte, the HM Courts & Tribunals Service, spending priorities follow electoral priorities. There are votes in law and order, but none in the proper disposal of small claims and private law children cases.
This skewed approach to the duty of government, consistent with the rule of law, to provide access to justice for all citizens with legal concerns is apparently shared by the professions, too. The front page of the Gazette on 13 February warned of the dangers of sentencing very minor, mainly ‘standard’, offences using voluntarily accessible online resources. Pilot schemes in criminal law apart, ‘justice by algorithm’ has also been threatened over a much wider area of circumstances and law in the county court as a possible consequence of the Briggs reports. Even though the outcome of an individual’s small claim (up to £10,000 at present, remember) may be of far more importance to him than the exact amount of his fine for lacking a TV licence, there has been no similar outcry. Where liberty of the subject is not in issue, to distinguish between the importance of one source of ‘justice’ against another is disingenuous.
Lower court judges are also puzzled by the apparent partnership between their High Court peers and the administration. While county courts are often visited by senior judges, and they are, for the most part, approachable and express concerns, it is not clear whether they have any practical understanding of how those courts work within their communities, and the different judicial tasks and rhythms undertaken by district and circuit judges. When push comes to shove, senior judges are mainly to be found on the other side of both the argument, on court closure for example, and the implementation of the consequences, for example the compulsory redeployment of ‘judicial resources’.
Accepting, as I do, that my entire standpoint may be antediluvian and that any serving judges sharing my views stand in the way of progress and a court model no longer fit for the 21st century, better consultation and personnel management by our leaders would not seem too big an ask.
I referred earlier to long-term judicial illness. This was not specifically addressed by the LCJ’s survey but it is, I believe, an issue of real concern. Judges are not just ‘fed-up’. They are subject to stress and anxiety arising, for many, from the gap between resources and demands, and the near impossible task of providing timely dispute resolution for those litigants still able to afford to use the courts. Prevention of such illness and absence has been laid at the door of local leadership judges, namely the DCJs, DFJs and, through them, to the family liaison and presiding High Court judges on each circuit. This is in addition to their full-time judicial jobs and all their other organisational and local responsibilities.
The fact of the matter is that pastoral care is not, and cannot be, effectively provided until it is too late for the judge needing respite. It could be expedited by self-reporting, but that may be seen as an admission of weakness and such self-reporting is unlikely to flourish if a career judiciary is instituted (as suggested most recently by Ryder LJ). Local colleagues are unlikely to provide reports to the leadership judges without consulting the judge affected before something wholly exceptional has occurred, and he/she is likely to attempt to dissuade them from reporting for the reasons already given. Judicial ill-health undoubtedly affects a more substantial minority than is apparent. While the help and care available once something has happened is of high quality and Equality Act adjustments may assist the recovering judge, by then the damage is done. Perhaps ministers, HMCTS, the senior judiciary (themselves very far from immune) and even the public at large, through the press, might have some sympathy with that.
It would be nice to conclude that help is on the way: that HMCTS will find ‘business cases’ for appointing new judges to replace those who have recently retired and that the redeployment of, for example, some tribunal judges into the courts will make a decisive difference. Unfortunately, the outlook is bleak – so bleak indeed, that the only remedy is to dismantle the county court system in place since 1846 and replace it with an untried and hugely ambitious online justice system where personal interaction between judge and litigant is the exception to the rule. We must all hope it is successful, because there will be no way back.
Peter Glover is a solicitor and former district judge