Judicial Appointments: follow-up Contents

Chapter 2: The attractiveness of judicial careers

Introduction

5.The legal system in the UK is world-renowned. The high-quality justice it delivers is a significant contributor both to society and the UK economy.8 The obvious public interest in the quality of the administration of justice within the UK requires no elaboration. Its quality is underlined, however, by its impact overseas. “English law is the most commonly used law in international business and dispute resolution” and it encourages people to come from all over the world to litigate in our courts.9 “This pre-eminence is built on the impartiality, integrity and depth of experience of the judiciary.”10 As Sir Geoffrey Vos, Chancellor of the High Court, said in a lecture in June 2017, one of the “unique selling points that we have in the UK is the independence of our judiciary.”11

6.It is essential for maintaining the high quality of our legal system that we retain the best judges in our judiciary and attract the brightest and most able candidates to put themselves forward for judicial appointment. A career in public service can be a significant motivation for potential applicants. As Lord Justice Burnett, then Vice-Chairman of the Judicial Appointments Commission, now Lord Chief Justice of England and Wales, told us: “Certainly, at the High Court level nobody applies for the job unless they have a sense of public duty.”12

7.The public interest demands that the high quality of our judicial system should be maintained. However, we heard that in recent years judicial office had become significantly more demanding and, simultaneously, less attractive.13 Our follow-up inquiry found a number of explanations for this, including salary and pensions, working conditions, as well as increasing demands made on judges, and damage to the relationship between the judiciary and the government. We examine these issues below.

8.Concerns about the attractiveness of judicial careers were supported by data from the Judicial Attitudes Survey (JAS),14 which reported that the proportion of judges in 2016 who said they would leave the judiciary if it was a viable option had almost doubled from 2014 (from 23% to 42%).15 The JAS asked judges if they were considering leaving the judiciary in the next five years other than by reaching compulsory retirement age. Of those judges who would not reach compulsory retirement age in the next five years, over a third (36%) said they were considering leaving (an increase of 5 percentage points since 2014), and almost a quarter (23%) were undecided.16 Table 1 shows the factors that a majority of judges said would make them more likely to leave the judiciary early.

Table 1: Factors promoting early departures

What factors would make you more likely to leave the judiciary early

2016 JAS

Limits on pay awards

68%

Reduction in pension benefits

68%

Increase in workload

57%

Further demands for out of hours work

54%

Stressful working conditions

54%

Reduction in administrative support

51%

Source: UCL Judicial Institute, 2016 UK Judicial Attitude Survey, 7 February 2017, p 74: https://www.judiciary.gov.uk/wp-content/uploads/2017/02/jas-2016-england-wales-court-uk-tribunals-7-february-2017.pdf [accessed 26 October 2017]

9.These concerns were relevant to both retaining current judges and for the appeal of the judiciary to new applicants.

Pay and pensions

10.In our 2012 report we noted that one of the challenges of recruiting to the bench was the salary of judges compared to senior barristers and highly-paid City solicitors.17 In this inquiry, we heard that the £180,000 salary for a High Court judge was “a good salary as far as the public sector is concerned”18 and that for those working in smaller private practices, lower courts and tribunals, and for those working outside of London, the salary of a judge can be appealing. Robert Bourns, then President of the Law Society, commented: “the financial remuneration that is available to the judiciary [at the level below the High Court], with pension support as well, can be attractive to practitioners.”19

11.However, despite this, we heard that the difference in remuneration between a legal career in the public sector and private practice remained a significant issue affecting the recruitment of new judges and the retention of serving judges. Lord Thomas of Cwmgiedd, then Lord Chief Justice, told us that “there is obviously across government, and particularly in the legal sector, an issue with pay.”20 Robin Allen QC, Chairman of the Equality and Diversity and Social Mobility Committee at the Bar Council of England and Wales, said there was an expectation “that there will be difficulties, particularly in the High Court posts in the commercial end of practice, simply because of the disparity between earnings at the commercial Bar and the earnings that barristers will give up in order to become judges of the High Court.”21

12.Embarking on a judicial career requires some candidates to accept a significant decrease in salary; this has long been the case for the highest-earning lawyers.22 However, as the Senior Salaries Review Body (SSRB) stated in their 2017 annual report:

“while people are motivated to become judges for a range of reasons and tend to accept that a commitment to public service as a judge may involve moving to a lower salary on appointment, pay and wider reward are nevertheless important in influencing individual decisions to apply for judicial posts. Senior judges, in particular, accept that they may see a significant drop in salary from their previous work. However, recent changes to terms and conditions, especially judicial pensions, appear to have made the posts less attractive.”23

13.On judicial pay, the 2016 JAS found that 78% of all judges said they had experienced a loss of net earnings over the last two years.24 Additionally, 63% of judges said that the judicial salary was affecting their morale and 82% said that it was affecting the morale of judges they worked with.25 The survey also found that 62% of judges said the change in pensions had affected them personally26 and 74% felt that their pay and pension entitlement combined did not adequately reflect the work they had done and would do before retirement.27 Furthermore, 61% of judges said the change in pensions had affected their morale and 88% said it had affected the morale of judges they worked with.28

14.The then Lord Chancellor, Liz Truss MP, acknowledged:

“we need to make sure that the real feelings of value the Government have for judges right across the country are understood and communicated properly and effectively. It is partly about salary, remuneration and pensions, and that is one of the reasons I have asked the Senior Salaries Review Body to conduct a major review of it.”29

15.The SSRB review of judicial pay will examine “whether the current judicial salary structure is fit for purpose, evaluate roles carried out by all judicial office holders, consider the growth of leadership roles within the judiciary, and advise on the positions and level of pay required to recruit, retain and motivate high calibre office holders at all levels of the judiciary.”30 It is due to be completed by June 2018.

16.We recognise the growing disparity in pay between the private and public sectors, particularly at the senior levels of the judiciary. Without wishing to pre-empt the Senior Salaries Review Body’s review, we note that, given the restraints on public sector pay, it is unlikely judicial pay will increase in a way that significantly reduces this difference. The Government should address the other issues which undermine the attractiveness of the judiciary as a career path, which we consider later in this report.

17.Beyond the questions relating to judicial salaries, “the whole issue of judges’ pensions has been very concerning indeed”31 and “there is a problem in pensions where the circuit bench feels that it has been unjustly treated.”32

18.Changes were made to judicial pensions in 2015 as part of the Government’s reforms to public sector pensions. As the SSRB’s 2017 annual report explained, most salaried judicial office holders are members of either the 1993 Judicial Pension Scheme or the 2015 Judicial Pension Scheme.33 The 1993 scheme gives a final-salary pension, while the 2015 scheme is based on career average earnings, in line with other public sector schemes.34 Judges who were within 10 years of the normal retirement age (65) on 1 April 2012 were able to remain on the more generous 1993 scheme. Judges who were aged between 51.5 and 55 years on 1 April 2012 were allowed to defer joining the 2015 scheme for a period of time. New judges, and those younger than 51.5 years old, could only join the 2015 scheme.

19.In short, newly appointed judges who had recently given up successful careers in the legal professions on the basis that their pension arrangements would be governed by the 1993 Judicial Pension Scheme found that, without their agreement, they were forced into the much less valuable 2015 scheme. This represented a significant personal detriment at the outset of their judicial careers. It also constituted a breach of the principle of security of tenure. Beyond the judges directly affected, the judiciary as a whole was disturbed and angered by the changes.

20.The pension changes have resulted in ongoing litigation between judges and the Government. In January 2017 an employment tribunal upheld a claim by 210 judges that they suffered an unjustified loss to their pensions, purely because they were younger, when the 2015 Judicial Pension Scheme was introduced.35 The tribunal decided that, as older judges were allowed to stay in the 1993 scheme until retirement, or for an interim period, this was unlawful discrimination against younger judges.36 The Government is appealing the judgment.37

21.There has also been litigation between judges and the Government regarding pensions for those serving in a fee-paid capacity. In O’Brien v Ministry of Justice, the claimant argued that he was entitled to a pension in respect of his fee-paid judicial work as a recorder on the same basis, adjusted pro rata temporis, as that paid to salaried judges who had done the same or similar work. The then Department for Constitutional Affairs told him that he was not entitled to a judicial pension since the office of recorder was not a qualifying judicial office under the relevant UK legislation and because, under European law, he was an office-holder rather than a worker. The Supreme Court found that recorders were in an employment relationship within the meaning of EU law concerning part-time work and must be treated as “workers” for the purposes of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. The Supreme Court concluded that no objective justification had been shown in this case for departing from the basic principle of paying a part-time worker the same as a full-time worker calculated on a pro rata temporis basis.38 As a result, the Government made the Judicial Pensions (Fee-Paid Judges) Regulations 2017,39 which the minister said would “establish a pension scheme for eligible fee-paid judges that mirrors the existing pension scheme for salaried judges established by the Judicial Pensions and Retirement Act 1993.”40

22.Robin Allen QC said that such litigation “conveys a terrible message”41 and that it “does not seem right to me—and I do not think it seems right to anyone on the Bar—that there should be litigation between judges and the Government, except very rarely about very rare things. Collective litigation like this gives a very bad impression.”42

23.We do not comment on the economic circumstances in which the Government made changes to the arrangements for judicial pensions. However, we are deeply concerned that the sense of grievance created by the pensions issue has damaged morale throughout the judiciary and will have reduced the appeal of a judicial career to those who might otherwise have been thinking of one.

Working conditions and resources

24.The judiciary’s working conditions were raised as an area of concern. Robin Allen QC told us that “the whole maintenance of the judicial system is absolutely creaking”43 and that the “working conditions are a deterrent” to those thinking of applying to the judiciary.44 The 2016 JAS found that 76% of judges felt their working conditions had deteriorated since 2014.45 Forty-three per cent said that the maintenance of their building was poor and 31% said that the physical quality of the building as a whole was poor.46

25.Lord Thomas of Cwmgiedd, then Lord Chief Justice, told us about the “general dilapidated state of the court estate”, with “buckets in every area”. He explained that “in the Leeds court, the plaster has been falling off the wall for years” and he noted that “there is nothing more demoralising than going to a building that is dilapidated.”47 He cited his experience sitting in the Court of Appeal in Winchester where “the roof leaks, they had buckets in the corridor and the heating does not work all the time.”48

26.Robin Allen QC said that the judicial estate was in many places “very tatty” and illustrated the conditions he experienced whilst sitting as a recorder in inner London:

“my retiring room has no windows, the court has no windows, and the size of the retiring room is about twice the size of a post box. That is not the case in every court; there are some modern courts that are excellent. However, you experience that and you think, ‘Do I want to commit myself to a life living quite like that?’”49

27.He observed that “in many courts, catering facilities have been withdrawn” and this caused practical difficulties, as judges “cannot just go out in the middle of the day and mix with defendants and witnesses; it would be completely inappropriate for them to do that.”50

28.We heard that there were considerable problems with staff resourcing across the judicial estate, administrative burdens facing judges and IT. On court administration, Lord Neuberger of Abbotsbury, then President of the Supreme Court, said that “a judge’s life has become more demanding over the past 20 years—and probably even more over the past 40 years—than before in terms of administrative responsibility and the pressure of work.”51 Lord Thomas reported that a professor specialising in court administration had told him “that there is an endemic problem in that people do not understand the resources necessary to run a court system until it falls over.”52

29.Lord Thomas explained that “the Ministry of Justice is under resourced … There was a programme, which has been happening probably since I became involved in leadership, of gradually running down people with experience. They have all gone, with one or two exceptions … The problem is that the ministry simply does not have enough money to have a proper staff to do the work.”53 He continued, “a lot of the staff at HMCTS are retained on short-term contracts, and if you ask any district judge—district judges bear the brunt of the problems—there are real difficulties in their files being properly put together.”54 These views were reflected in the 2016 JAS, which found that 42% of judges said the amount of administrative support was poor and 64% said the morale of court staff was poor.55

30.Lord Thomas also explained that there were “inevitable problems with rolling IT out and there are some that have occurred as a result of the extreme difficulty in dealing with an IT system that had not been modernised for 15 years.”56 However he told us that “that is coming [and] it is on track.”57

31.The then Lord Chancellor, Liz Truss MP, acknowledged that the government needed “to look at the conditions in courts. Are they pleasant places to work? On working practices, do judges have enough support? Some judges tell me they feel quite overwhelmed by the amount of work. Some judges are working in very difficult environments.”58 She explained that:

“one thing we are doing in the Prisons and Courts Bill is giving more support from case officers so that judges have to do less of the administrative work and more of their time is freed up. The figures I have shown you are pretty poor; they will not be turned round in a year; this is like turning round an oil tanker. One of the reasons we have set out the Ministry of Justice’s strategy for the next 10 years is to look to the long term about how we genuinely shift this and make sure that judges feel valued and have a clear career path.”59

32.Although the Prisons and Courts Bill did not complete its passage through Parliament, due to the 2017 general election, the Government announced its intention to bring forward a new Courts Bill to “reform our courts and tribunal system to improve access to justice, making better use of technology and modernising working practices.”60

33.In September 2016 the then Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals published a joint paper entitled Transforming our Justice System which set out their aim “to modernise and upgrade our justice system so that it works even better for everyone.”61 The paper set out the need for “radical change” and the need “to have modern IT and processes and to be located in buildings which are fit for purpose.”62 Lord Neuberger told us that there was “substantial expenditure” on “improving the courts physically and introducing what one hopes will be a very effective IT system.”63 The Lord Chief Justice’s 2017 report stated that “the Courts and Tribunals Modernisation Programme continues apace and well on track with the £1bn investment provided.”64 Lord Neuberger said that such investment and modernisation will “probably have a significant effect on the working conditions of judges.”65

34.We are concerned about the working conditions of the judiciary and the detrimental effect they may be having on retaining and recruiting judges. The dilapidated state of some courts coupled with administrative burdens, under-resourcing of staff and IT shortcomings all need to be addressed.

35.We are pleased that the Government has said that it is committed to addressing these problems, both in partnership with the senior judiciary, and ultimately through legislation. However, a considerable investment of funds and political energy will be needed to achieve the required improvements both in the immediate future and long-term.

Returning to practice after a judicial career

36.There is a long-standing convention which prevents full-time judges from returning to private practice after retiring from the bench. The convention is based on the belief that one of the strengths of our judicial system is that those who accept judicial appointment have already enjoyed successful careers in the law, and, with some real understanding of the responsibilities, (usually after sitting as part-time judges) are fully committed to full-time judicial office for the long term. This process underpins the collegiate atmosphere of mutual support and assistance among the judges and retains the benefit of long-term judicial experience for the judiciary. It has worked well for many years.

37.We were however told that the convention operates as a disincentive and that it is “extremely influential”66 in deterring potential applicants. We explored whether judges should be able to return to practice on leaving the judiciary, particularly given that part-time judges may continue to practise whilst sitting on the bench. Robin Allen QC told us that “part-time judges who are not salaried do continue in practice. If that is the case, then it seems very difficult to suggest that they cannot do it once they become salaried and then stop being salaried and retire from that post. I know it is controversial but that is my view. It is the Bar Council’s view too.”67 Robert Bourns from the Law Society concurred.68

38.We recognise that the concept of judges returning to practice law is controversial. We invite the Lord Chancellor and the Lord Chief Justice to examine the continuing value of the convention, and in particular, whether it serves to operate as a significant disincentive to applications for full-time judicial appointment.

Retirement

39.The Judicial Pensions and Retirement Act 1993 introduced a retirement age of 70 for all judges. The rationale was to create consistency in the judicial retirement system. However, any judge first appointed to judicial office before 31 March 1995 was not required to retire until reaching 75; a number of serving judges remain subject to this higher retirement age.69

40.In our 2012 report we concluded: “we do not agree that there should be a uniform retirement age across the whole of the judiciary. There should be differential retirement ages: of 75 for Court of Appeal judges and Supreme Court Justices and 70 for all other judges.”70 This recommendation was not implemented. The Government said in its response:

“The current retirement age seeks to strike a balance between retaining the experience of the senior judiciary, while ensuring that high quality applicants can attain the highest judicial offices. We do not consider that the current retirement age compromises the quality of the judiciary at the highest levels, or works disadvantageously against those following less traditional career paths.”71

41.Baroness Hale of Richmond, then Deputy President (now President) of the Supreme Court explained that the retirement age caused practical problems for the Supreme Court: it would have “nine vacancies over the next three years because some of us have the privilege of being able to continue until we are 75 and others are having to retire at 70, even though they are still at the height of their powers, which is a great shame.”72

42.Lord Kakkar, chairman of the Judicial Appointments Commission (JAC), told us:

“On the one side, clearly having a fixed retirement age provides the opportunity to ensure that there are not questions about performance or health of judges as they become very old and potentially not able to perform. On the other side of the argument, quite clearly a large number of talented people are retiring at 70 when, with all the challenges facing the judiciary, there may be a strong argument for them to remain on the Bench and continue to serve. The argument put against that is that, if one does that, one blocks a number of potential positions for an increased period of time and the ability to drive forward diversity through new appointments is diminished.”73

43.Lord Neuberger said it was “a bit quaint that the retirement age used to be 75 and has been reduced to 70 at a time when retirement ages everywhere else are generally going up, or there are no retirement ages … To have a sensible judicial career, one would therefore be well-advised to increase the retirement age to 75. I have been in favour of that for some time.”74

44.However, Lord Thomas said that there was a need “to be very careful about the retirement age. It is a very complicated subject.”75 He told us:

“my experience has been that from time to time when you cross a certain age threshold your faculties may not be as good as they were a year or two before. The problem with the judiciary is that you cannot say to someone, ‘You’ve got to go now’, so we need to be very cautious.”76

45.Given the difficulties in recruiting judges, which we address in the next chapter, the Lord Chancellor, with the Heads of the Judiciary in England and Wales, Scotland and Northern Ireland and the President of the Supreme Court, should reflect on whether the current fixed retirement age throughout the judiciary continues to be appropriate. Consideration should also be given to whether a higher retirement age would be appropriate at the senior levels of the judiciary, given that most judges do not reach the higher ranks until later in their careers.

Relationship with the Government

46.The 2016 Judicial Attitudes Survey revealed low levels of morale amongst the judiciary, and in particular found that only 2% felt valued by the Government.77 Robin Allen QC told us that there was “a general concern about the relationship between the [Ministry of Justice] and judges.”78 He explained that there was “a real concern about, essentially, a relationship between potential judges and what they are getting into if they give up practice and become if not employees then officers under the purview of the Ministry of Justice. That is a major concern.”79

47.The then Lord Chancellor, Liz Truss MP, said she was “extremely concerned about … judicial morale, recruitment and retention, because to have a strong, independent judiciary we need people who feel they are valued by the Government and society. If you look at the figures, they are not brilliant.”80

48.The relationship between the judiciary and the Government was not helped by the furore around the case of R (Miller) v Secretary of State for Exiting the European Union regarding the invoking of Article 50 of the Treaty on European Union.81 There was sharp criticism of the judges involved from some sections of the media, with one newspaper referring to them as “enemies of the people.”82 Lord Thomas told us that it was:

“the only time in the whole of my judicial career that I have had to ask the police to give us a measure of advice and protection in relation to the emotions that were being stirred up. It is very wrong that judges should feel it. I have done a number of cases involving al-Qaeda. I dealt with the airline bombers’ plot and some other very serious cases, and I have never had that problem before.”83

He added that “the circuit judges were very concerned and wrote to the Lord Chancellor because litigants in person were coming and saying, ‘You’re an enemy of the people’.”84

49.Lord Neuberger explained that “The Lord Chancellor has a particular duty to speak up when the Lord Chief Justice and the President of the Supreme Court are hampered by the fact that they have been or are to be involved in the case and therefore cannot speak up.”85 Section 3(1) of the Constitutional Reform Act 2005 (CRA) states that “The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary”;86 and section 3(6)(a) requires the Lord Chancellor to have regard to the need to defend that independence.87

50.In our 2014 report, The Office of the Lord Chancellor, we noted that:

“The Lord Chancellor has an additional duty, expressed in the oath of office, to “defend” that independence. As the rest of section 3 (of the CRA) sets out … this defence includes preventing undue Government influence on judicial decisions (including undue ministerial criticism of judicial decisions), ensuring adequate resources for the judiciary to exercise their functions and having regard to the public interest.”88

51.We found that it was “clear from the evidence of the current Lord Chancellor and of the Ministry of Justice, as well as of former Lord Chancellors, that the importance of judicial independence and the Lord Chancellor’s central role in upholding it are well understood in Government.”89 We concluded that “judicial independence is a vital element of the United Kingdom’s uncodified constitution. That its defence is a core part of the Lord Chancellor’s role is uncontested.”90

52.The defence of judicial independence is fundamental to the rule of law. We were concerned that it was seen to be challenged by unjustified media criticism following the Miller judgment. We raised our concerns with the then Lord Chancellor, Liz Truss MP, who told us:

“Where perhaps I might respectfully disagree with some who have asked me to condemn what the press are writing, is that I think it is dangerous for a government Minister to say this is an acceptable headline and this is not. I am a huge believer in the independence of the judiciary; I am also a very strong believer in a free press and the value it has in our society.”91

53.However, the then Lord Chief Justice disagreed with the position Liz Truss took: “I regret to have to criticise her as severely as I have, but to my mind she is completely and absolutely wrong about this, as I have said, and I am very disappointed … she has taken a position that is constitutionally absolutely wrong.”92 Lord Thomas pointed out the importance of upholding the duty to protect the independence of the judiciary and stated that “it really is absolutely essential that we have a Lord Chancellor who understands her constitutional duty.”93 Lord Neuberger agreed with Lord Thomas,94 and explained:

“It is not an issue of freedom of expression. If, as has been said, newspapers had the right under freedom of expression to be critical of the judiciary—indeed, many would say that they were worse than critical and in fact abusive—surely freedom of expression entitles the Lord Chancellor to correct and criticise what they say, and in my view section 1 of the Constitutional Reform Act means that she has a duty to do so.”95

54.Liz Truss MP believed “the way to protect independence in the long term is to make the positive case and rebut criticism by explaining to the public why the process is independent and how it works, rather than trying to say that people should not be able to express that criticism, however unfounded it might be.”96 However, Lord Thomas, although accepting that “criticism is very healthy”, said that “there is a difference between criticism and abuse which I do not think is understood.”97 He continued that “it is not understood either how absolutely essential it is that we are protected, because we have to act, as our oath requires us, without fear or favour, affection or ill will.”98

55.The new Lord Chancellor, David Lidington MP, in his swearing-in speech in June 2017, stated that “the freedoms and protections that we all enjoy are of course built on a principle that is much more important than the seals and the symbols of office—the rule of law itself. That principle, together with the independence of the judiciary, form the very bedrock of a free and democratic society.” He continued: “I am determined I will be resolute and unflinching as Lord Chancellor in upholding the rule of law and defending the independence of the judiciary.”99

56.It is imperative that the independence of the judiciary is protected and that it is well-understood by the public. This does not impinge on the right of the free press to challenge or to criticise court judgments.

57.However, there is a difference between criticism and abuse; between challenging the content of a judgment and attacking the character and integrity of the judge handing down that judgment. In such cases, the Lord Chancellor’s constitutional duty is clear—as stated in the oath of office, the Lord Chancellor must defend the independence of the judiciary. Should members of the judiciary suffer such personal attacks in future, we expect any person holding the office of Lord Chancellor to take a proactive stance in defending them publicly, as they are unable to defend themselves.

58.We welcome the new Lord Chancellor’s commitment to be “resolute and unflinching” in defending the independence of the judiciary.


8 The total turnover of the UK legal services sector in 2015 was £32.1bn. Law Society, Key Economic Statistics for the Legal Sector, March 2017: http://www.lawsociety.org.uk/news/documents/legal-sector-economic-stats/ [accessed 26 October 2017]

9 TheCityUK, UK Legal Services 2016, July 2016, p 17: https://www.thecityuk.com/assets/2016/Reports-PDF/UK-Legal-services-2016.pdf [accessed 26 October 2017]. See also, annual oral evidence taken on 22 March 2017 (Session 2016–17) Q 1 (Lord Thomas of Cwmgiedd, Lord Chief Justice of England and Wales)

10 TheCityUK, UK Legal Services 2016, July 2016, p 17

11 Sir Geoffrey Vos, Chancellor of the High Court, Lecture to the Faculty of Advocates, ‘The UK Jurisdictions After 2019’, 20 June 2017: https://www.judiciary.gov.uk/wp-content/uploads/2017/06/chc-speech-faculty-of-advocates.pdf [accessed 26 October 2017]

12 Q 2 (Lord Justice Burnett, Vice-Chairman of the Judicial Appointments Commission)

13 Annual oral evidence taken on 29 March 2017 (Session 2016–17) Q 10 (Lord Neuberger of Abbotsbury, President of the Supreme Court) and Q 2 (Lord Justice Burnett)

14 The Judicial Attitudes Survey was conducted by the Judicial Institute of University College London in 2014 and 2016. The survey sought the views of serving salaried judges in England and Wales, Scotland, Northern Ireland and the UK non-devolved tribunals, including both full-time salaried and part-time salaried judges. The figures quoted in this report relate solely to judges in the England and Wales Courts and UK tribunals. The response rate for this group to the 2016 survey was 99%.

15 UCL Judicial Institute, 2016 UK Judicial Attitude Survey, 7 February 2017: https://www.judiciary.gov.uk/wp-content/uploads/2017/02/jas-2016-england-wales-court-uk-tribunals-7-february-2017.pdf [accessed 26 October 2017]

16 UCL Judicial Institute, 2016 UK Judicial Attitude Survey, p 74

17 Constitution Committee, Judicial Appointments, para 121

18 Annual oral evidence taken on 1 March 2017 (Session 2016–17) Q 8 (Elizabeth Truss MP, Lord Chancellor)

19 Q 22 (Robert Bourns, President, Law Society of England and Wales)

20 Annual oral evidence taken on 22 March 2017 (Session 2016–17) Q 7 (Lord Thomas of Cwmgiedd)

21 Q 21 (Robin Allen QC, Chairman, Bar Council Equality and Diversity and Social Mobility Committee, Bar Council of England and Wales)

22 Constitution Committee, Judicial Appointments, para 121

23 Review Body on Senior Salaries, Thirty-Ninth Annual Report on Senior Salaries 2017, Cm 9455, July 2017: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/629679/SSRB_2017_report_Print.pdf [accessed 26 October 2017]

24 UCL Judicial Institute, 2016 UK Judicial Attitude Survey, p 37

25 Ibid.

26 Ibid., p 41

27 Ibid., p 47

28 Ibid., p 42

29 Annual oral evidence taken on 1 March 2017 (Session 2016–17) Q 8 (Elizabeth Truss MP)

30 Letter from the Chair of the SSRB Judicial Sub-Committee, Office of Manpower Economics, 13 December 2016: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/581470/SSRB_JSC_CHAIR_TO_JUDICIARY_ON_MAJOR_REVIEW_13_DEC_2016_FINAL.pdf [accessed 27 October 2017]

31 Q 23 (Robin Allen QC)

32 Annual oral evidence taken on 22 March 2017 (Session 2016–17) Q 7 (Lord Thomas of Cwmgiedd)

33 Membership of either pension scheme was not mandatory.

34 Review Body on Senior Salaries 2017, Thirty-Ninth Annual Report on Senior Salaries 2017

35 Ms V McCloud and Others Mr N Mostyn and Others v The Lord Chancellor and Secretary of State for Justice and Ministry of Justice, Case No: 2201483/2015 & Others, 2202075/2015 & Others: https://assets.publishing.service.gov.uk/media/58e3a79640f0b606e30000ad/Ms_V_McCloud_and_others_v_The_Lord_Chancellor_and_Others_221483–2015_others__Judgment_and_reasons.pdf [accessed 26 October 2017]

36 Review Body on Senior Salaries, Thirty-Ninth Annual Report on Senior Salaries 2017

37 Review Body on Senior Salaries, Thirty-Ninth Annual Report on Senior Salaries 2017 and Ministry of Justice, Fee-Paid Judicial Pension Scheme Regulations: Response to consultation, 27 February 2017: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/595798/fpjps-consultation-response.pdf [accessed 26 October 2017]

38 O’Brien (Appellant) v Ministry of Justice (Formerly the Department for Constitutional Affairs) (Respondent) [2013] UKSC 6 on appeal from [2008] EWCA Civ 1448, 6 February 2013: https://www.supremecourt.uk/cases/docs/uksc-2009–0123-press-summary.pdf [accessed 26 October 2017]

39 The Judicial Pensions (Fee-Paid Judges) Regulations 2017 (SI 2017/522)

40 House of Commons First Delegated Legislation Committee, Draft Judicial Pensions (Fee-Paid Judges) Regulations 2017, 27 March 2017, col 1 [The Parliamentary Under-Secretary of State for Justice, Dr Phillip Lee]

41 Q 23 (Robin Allen QC)

42 Q 24 (Robin Allen QC)

43 Q 22 (Robin Allen QC)

44 Ibid.

45 UCL Judicial Institute, 2016 UK Judicial Attitude Survey, p 13

46 Ibid., p 17

47 Annual oral evidence taken on 22 March 2017 (Session 2016–17) Q 6 (Lord Thomas of Cwmgiedd)

48 Ibid.

49 Q 22 (Robin Allen QC)

50 Ibid.

51 Annual oral evidence taken on 29 March 2017 (Session 2016–17) Q 10 (Lord Neuberger of Abbotsbury)

52 Annual oral evidence taken on 22 March 2017 (Session 2016–17) 3 (Lord Thomas of Cwmgiedd)

53 Ibid.

54 Ibid.

55 UCL Judicial Institute, 2016 UK Judicial Attitude Survey, February 2017 pp 16–17

56 Annual oral evidence taken on 22 March 2017 (Session 2016–17) Q 6 (Lord Thomas of Cwmgiedd)

57 Ibid.

58 Annual oral evidence taken on 1 March 2017 (Session 2016–17) Q 8 (Elizabeth Truss MP)

59 Ibid.

60 Prime Minister’s Office, The Queen’s speech and associated background briefing, on the occasion of the opening of Parliament on 21 June 2017, p 40: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/620838/Queens_speech_2017_background_notes.pdf [accessed 26 October 2017]

61 Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals, Transforming Our Justice System, September 2016, p 3: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/553261/joint-vision-statement.pdf [accessed 26 October 2017]

62 Ibid., p 3

63 Annual oral evidence taken on 29 March 2017 (Session 2016–17) Q 10 (Lord Neuberger of Abbotsbury)

64 Judiciary of England and Wales, The Lord Chief Justice’s Report 2017, p 7: https://www.judiciary.gov.uk/wp-content/uploads/2017/09/lcj-report-2017-final.pdf [accessed 26 October 2017]

65 Annual oral evidence taken on 29 March 2017 (Session 2016–17) Q 10 (Lord Neuberger of Abbotsbury)

66 Q 23 (Robert Bourns)

67 Q 23 (Robin Allen QC)

68 “I share that view”. Q 23 (Robert Bourns)

69 Constitution Committee, Judicial Appointments, para 190

70 Ibid., para 197

71 Ministry of Justice, Government response to the House of Lords Constitution Committee’s Report: Judicial Appointments, Cm 8358, May 2012: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/217334/judicial-appointments-gov-response.pdf [accessed 26 October 2017]

72 Annual oral evidence taken on 29 March 2017 (Session 2016–17) Q 9 (Baroness Hale of Richmond, Deputy President of the Supreme Court)

73 Q 4 (Lord Kakkar, Chairman, Judicial Appointments Commission)

74 Annual oral evidence taken on 29 March 2017 (Session 2016–17) Q 9 (Lord Neuberger of Abbotsbury)

75 Annual oral evidence taken on 22 March 2017 (Session 2016–17) 4 (Lord Thomas of Cwmgiedd)

76 Ibid.

77 UCL Judicial Institute, 2016 UK Judicial Attitude Survey, February 2017 p 9

78 Q 23 (Robin Allen QC)

79 Q 21 (Robin Allen QC)

80 Annual oral evidence taken on 1 March 2017 (Session 2016–17) Q 1 (Elizabeth Truss MP)

81 R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) and R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5 On appeals from: [2016] EWHC 2768 (Admin) and [2016] NIQB 85

82 James Slack, ‘Enemies of the people: fury over ‘out of touch’ judges who have ‘declared war on democracy’ by defying 17.4m Brexit voters and who could trigger constitutional crisis’, Mail Online, (4 November 2016): http://www.dailymail.co.uk/news/article-3903436/Enemies-people-Fury-touch-judges-defied-17-4m-Brexit-voters-trigger-constitutional-crisis.html [accessed 26 October 2017]

83 Annual oral evidence taken on 22 March 2017 (Session 2016–17) Q 4 (Lord Thomas of Cwmgiedd)

84 Annual oral evidence taken on 22 March 2017 (Session 2016–17) Q 3 (Lord Thomas of Cwmgiedd)

85 Annual oral evidence taken on 29 March 2017 (Session 2016–17)  Q 7 (Lord Neuberger of Abbotsbury)

86 Constitutional Reform Act 2005, Section 3(1)

87 Constitutional Reform Act 2005, Section 3(6)(a)

88 Constitution Committee, The Office of the Lord Chancellor (6th Report of Session 2014–15, HL Paper 75), para 26

89 Ibid., para 31

90 Ibid., para 32

91 Annual oral evidence taken on 1 March 2017 (Session 2016–17) Q 3 (Elizabeth Truss MP)

92 Annual oral evidence taken on 22 March 2017 (Session 2016–17) 4 (Lord Thomas of Cwmgiedd)

93 Ibid.

94 “I agree with what the Lord Chief Justice said.” Annual oral evidence taken on 29 March 2017 (Session 2016–17) Q 7 (Lord Neuberger of Abbotsbury)

95 Annual oral evidence taken on 29 March 2017 (Session 2016–17) Q 7 (Lord Neuberger of Abbotsbury)

96 Annual oral evidence taken on 1 March 2017 (Session 2016–17) Q 3 (Elizabeth Truss MP)

97 Annual oral evidence taken on 22 March 2017 (Session 2016–17) Q 4 (Lord Thomas of Cwmgiedd)

98 Ibid.

99 David Lidington MP, Speech at his Lord Chancellor swearing-in ceremony, 19 June 2017: https://www.gov.uk/government/speeches/lord-chancellor-swearing-in-speech-david-lidington [accessed 26 October 2017]




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