The recruitment crisis is damaging every level of the judiciary
The problem started in the High Court. In 2015 for the first time the Judicial Appointments Commission (JAC) could not fill a vacancy in the family division. In 2016 there were six High Court jobs unfilled. Now there are eight — despite a temporary 11 per cent pay rise for new judges.
The circuit bench faces similar developments. In 2016 11 out of 55 vacancies could not be filled. In 2017 it was 12 out of 116.5. The problem extends to the district bench in the county and family courts. No appointable candidates were found for four places out of 100.5 in 2017.
The quality of appointees has also declined. Until 2015 it was the JAC’s proud boast that all High Court judges were A-class “outstanding” candidates. Now the commission merely says that they are rated A or B (“strong”). So far no C-class (“selectable”) candidates have been appointed to the High Court. If the shortfall continues, however, this can only be a matter of time.
It has already happened with circuit judges. In 2016 14 appointees were C-class — the first time such candidates were chosen. In the next competition 19 were C-class. In the most recent competition 25 were C-class. With district judges the situation is even starker. In the most recent competition 43 appointees were C-class; only 53 were A or B.
Moreover, these statistics do not show how the judiciary is being hollowed out. In the most recent circuit judge competition, of the 88 appointments announced so far, 30 are of district judges. The effect is that the district bench is being cannibalised to fill the circuit bench. Further, these promotions strip the district bench of its strongest judges. Coupled with the increased appointments of C-class judges to the district bench, the inevitable consequence is a stark decline in the quality of this rung of the judiciary.
The quality of appointments to salaried posts stands in contrast to the quality of candidates for fee-paid judicial appointments, which remains high. The JAC asks whether “fee-paid positions combined with continued professional practice are becoming an increasingly more attractive career path than the salaried judiciary”. It says it lacks sufficient evidence to confirm that, but three factors support this view. First, the withdrawal of the personal allowance on earnings over £100,000 hits judges particularly hard. The marginal rate of income tax and National Insurance on earnings between £100,000 and £123,000 is 62 per cent.
Second, changes to judicial pensions make fee-paid service attractive. A full-time circuit judge in the New Judicial Pension Scheme 2015 is affected by the £40,000 annual allowance for pension contributions. Such judges must pay a tax surcharge of about £7,000, or accept a lower judicial pension. By contrast, after the O’Brien litigation, fee-paid judges are entitled to a judicial pension but can avoid exceeding the annual allowance.
Third, there is anecdotal evidence of barristers and solicitors going into semi-retirement, so they can do selected private work while picking sittings at their convenience. A salaried judge, even if part-time, does not have the same freedom.
The Senior Salaries Review Body is conducting a wide-ranging review of the judicial salary structure. It will no doubt recommend that certain judicial roles are allocated to particular pay bands. The government has indicated that any changes must be within the overall 1 per cent pay increase permitted for all public servants. The body must have regard to that directive, but more money needs to be made available if the judicial recruitment crisis is to be stopped.
Adrian Jack is a former justice of the Supreme Court of Gibraltar