Huge pay rises for judges may stave off disaster, but where will the judges come from in 10 years time?

The Top Salaries Review Body has announced that judges should receive a stonking pay rise. High Court judges – who sit near the pinnacle of the profession – should get an extra 32%, which works out at about another £60,000 per year, while middle-ranking, Circuit judges, who sit in most Crown and County Courts should get a smaller but still very helpful 22%, taking their salaries to a basic £165,000.

Some years ago Barristerblogger decided that he had slogged around the criminal courts long enough. He had imbibed enough of the elixir of wisdom that comes from prosecuting burglars in Bournemouth, mitigating the transgressions of sex mini-beasts in Swindon, and eating army packed-lunches in military courts from Bulford to Bielefeld. More to the point, with no pension provision beyond a mis-sold critical illness policy that would, at best, pay for 2 weeks off work if I was diagnosed with terminal pancreatic cancer, the time had come to rise above the blood and dust of the arena, to don a purple robe and to accept elevation to the judicial bench.

There were, of course, one or two preliminary details to be sorted out. The first of these was to get in some practice as a Recorder, a junior judge who is temporarily vested with most of the powers of a Circuit Judge and most of the privileges too, apart from the right to wear purple in court or, of course, the salary or (at that time) the pension.

Until not that long ago judicial appointments were done rather differently from the way they are done today. Things called “soundings” were taken, old-school ties adjusted and subtle hints dropped by friendly judges that So-and-So was a good chap (or rarely a chapess) whose time had come; and he would be quietly “sounded out.” If he showed interest – “Haha! Me? A judge? I’m sure no-one would ever think of making me a judge” – a few discrete background checks would be made, which went something like this:

“Know anything about Higgins?”

“He’s very sound. Wasn’t in my house, but a bloody good scrum-half.”

“What’s his practice like?”

“Prosecutes a lot, safe pair of hands.”

“Poofter?”

“No, happily married.”

“Drinker?”

“No more than normal.”

Then, Hey Presto, Higgins became a recorder. From there, if the presiding judge liked him and he was clever, lucky or cunning enough not to be appealed too often, a permanent appointment might follow and with it the coveted purple dressing-gown and almost complete security of tenure until it was time to close the judicial notebook for the last time and gratefully accept the solid gold pension. There was a certain amount to be said for such a system if you possessed, or at least were entitled to wear, an old school tie – if you weren’t a poofter of course, or a woman – but it can’t be denied that it had its flaws.

The modern system is certainly fairer, and on the whole I think it has produced better judges, although that may simply be that as one gets older the “old darlings” (as Rumpole called them) cease to be terrifying and start to become at first contemporaries, and then, gradually, terrifyingly brilliant young upstarts.

It begins with a form, in which you are asked to explain in excruciating detail “why I would make a brilliant judge,” although not quite in those words. It is not enough to say, diffidently, “oh, I don’t know, I think I could make a fist of it, but I would say that wouldn’t I?” Instead you have to blow your own trumpet. And it’s not enough to just blow it loudly, you have to demonstrate examples of how “decisive,” “independent,” “authoritative” and generally Solomonaic you are in your everyday life. To adopt the metaphor slightly, you have to praise yourself not just on the loud cymbals but also on the well-tuned cymbals.

This was not so easy, not least because I find it hard to make my mind up about anything and have never held any positions of authority at all, apart from captaining the chambers cricket team to a series of defeats so heavy that the once popular annual fixture eventually had to be cancelled. This was the first hint that the application process wasn’t going to be quite such a walk in the park. Days went by, then weeks while I racked my memory to think of a single example of where I had ever been more than averagely decisive – which obviously wouldn’t be good enough – and the more I tried to think of one, the less decisive I felt. All I could think of was that I was usually very quick to select items from the menu in restaurants, but that was hardly the sort of thing they were looking for.

You had to demonstrate “independence.” What did that mean? And then there was something about working in a team. Why would a judge work in a team? Surely, when you were on the bench your word was the law, never mind what any team thought. And how did you reconcile the two qualities anyway? The more you emphasised your independence the less you seemed like a team player, and vice versa.

Anyway, you get the idea. It’s painful and embarrassing and you don’t really want to put yourself through it unless you really, really want to be a judge.

The next stage was a written exam. You didn’t need to know any law as such: instead you are given an imaginary statute and rule book, and then asked to write judgments, under time pressure, on various imaginary scenarios, applying the imaginary law.

Somehow I bumbled my way through that and a week or two later the invitation arrived to go to a smart Westminster address for a day of role playing and interviewing.

The role playing involved a company of ham actors playing litigants, lawyers and witnesses, all of whom were doing their utmost to disrupt the quiet authority of the law that us judicial candidates were told to encapsulate. My court-room swiftly became an anarchic cockpit, as actors playing a diverse crowd of dissatisfied defendants, weeping complainants and incompetent lawyers shouted and swore at each other and at me, while a Lord Justice of Appeal looked on with thinly disguised contempt as I dismally failed to “show patience and courtesy” and even less to “assert authority when challenged.” After a few minutes my patience and courtesy had evaporated along with any vestigial authority, and all I could think of was to demand that the usher arrest the key troublemakers, which of course would have been neither correct nor even legal, but by then I was beyond caring. I was like a supply teacher being tortured by Year 9. Fortunately, the Lord Justice had seen enough and intervened to spare me further punishment. The interview that followed was another horror show, but we do not need to go there.

So you will understand, that although not cut out for judicial preferment, I have nothing but the greatest respect for those who are.

Unfortunately the very best ones are increasingly refusing to do the job for the pay on offer. In the most recent round of recruitment for High Court judges about one third of the positions was left unfilled, because the Judicial Appointments Commission could not find candidates of sufficiently high calibre. What’s more, many of the judges who were appointed wouldn’t have made the grade in previous years. The Commission grades appointable candidates as A (“outstanding”), B (“strong”) or C (“acceptable”), although I don’t think they are told which category they fall into (I can guess in my case). Until 2015 all new High Court Judges had been A class; since then some Bs have been appointed. Amongst the Circuit judges, the Commission says that it has already started appointing C grade candidates: 19 in 2016, rising to 43 out of 96 in the last round of recruitment. Moreover, many of the latest Circuit Judge appointments have been from District Judges who previously sat in the Magistrates Courts, which of course has itself weakened those courts. Before long some of us Ds (“poor”) and Es (“embarrassingly bad”) might have to be appointed, simply to keep the courts open at all, and while that may be good news for long-in-the-tooth supply-grade hacks who haven’t been able to afford to fund a pension, it’s not such good news for those who want to get justice in the courts.

Judges, or most of them anyway, deserve good pay for the extremely difficult work that they do. There is also, of course, a public interest in attracting the best talent with a high salary and other rewards, otherwise those able to earn good money as barristers and solicitors will simply not bother to apply.

So it is a terrible dilemma. There is no getting away from it: 32% (for the High Court Judges) or 22% (for the Circuit Judges) is a huge increase. Politically, it could not come at a more difficult time for the Government, just after Theresa May foolishly announced the “end of austerity” and just as Esther McVey admitted that some of the poorest people in the country are about to find their income reduced with the introduction of Universal Credit.

It will split the legal profession. Some will say – without even the merest whiff of self-interest, of course – that we need to pay top dollar to attract the best candidates. Other criminal barristers and solicitors, on the other hand, many of whom struggle to get by on £20,000 or £30,000 a year with huge debts to finance, will think that giving large pay increases to already comfortably-off judges is not the best use of scarce resources.

The criminal bar and the profession of criminal solicitor is, almost literally, dying on its feet. In the whole of mid-Wales there are, for example, (or were in 2017) just 11 criminal solicitors, most of whom were over 50, and over England and Wales as a whole the mean average age of duty solicitors is 47, and increasing every year, as their income continues to decline.

While judges ponder whether they will receive the full 32% increase, few criminal barristers, who have seen a 40% reduction in income from criminal legal aid in the last decade, are likely to be very sympathetic, even as the Government continues to squabble over exactly when a proposed increase of 1% (yes, 1%, not 11% or 21% or 31%) in their fees is to be implemented.

The criminal bar and the solicitors profession will probably not die altogether. Some barristers and solicitors will continue to work for pitifully low rates of pay. A few may be able to make a reasonable living living from privately paying clients. The independently wealthy will probably continue to represent criminal clients, because it can be a fascinating job. But do we really want to go back to the days when membership of the criminal bar, and the pool from which future criminal judges are recruited, is for practical purposes only open to the rich? And although I write about the criminal law because that is the area I understand best, barristers and solicitors acting for the poor in other areas of the law have seen their own, equally catastrophic, cuts in income.

Huge pay increases for judges may stave off disaster for a year or two, but they will do nothing to attract new talent into the law. Unless the government somehow finds the money to reverse the disastrous cuts in legal aid that the profession has endured over the last ten years, the result ten years from today will be a criminal judiciary full of independently wealthy, hideously over-paid, and over-promoted, Hooray Henries and Tim Nice But Dims. I’m not sure that overall that will be a good thing.