Over 100 new High Court judges could be needed in the next five years because of retirement and promotion, the Lord Chief Justice has predicted.
Lord Thomas described the end of transitional pension protection for judges by 2021 as a “potential ‘time bomb’” since many senior judges had already stated publicly that they would leave their jobs rather than join the 2015 judicial pension scheme.
In evidence to the Senior Salaries Review Body (SSRB), the LCJ said that by October this year, the High Court complement of 108 judges would be “down 22 judges” before any new appointments could be made from January’s recruitment round.
Lord Thomas told the SSRB: “This meant a further recruitment campaign would be necessary.”
He explained that 34 senior judges were retiring in 2016-17, “more than double the norm in any of the previous five years”.
In addition to the rise in those retiring on reaching the age of 70, 23 of the 34 were due to retire early – compared with no more than 13 early retirements in each of the previous five years.
Meanwhile, in its annual report on senior salaries, the SSRB called for recruitment and retention of circuit court judges to be “particularly closely monitored”, following “a number of unfilled vacancies” this year.
The review body said the Judicial Appointments Commission had confirmed that the 11 unfilled vacancies, following a recruitment exercise for circuit judges last year, were the first ever experienced.
However, Lord Thomas told the SSRB that he was “taking a cautious approach” to this problem, and that it was “possible that application numbers had fallen following developments in legal aid policy, or because criminal law solicitors and barristers were moving into more lucrative regulatory work”.
The government announced last month, a few hours before the new Lord Chancellor took office, that the SSRB would be carrying out a “major review” of judicial salaries, scheduled to be completed by June 2018.
The review body said it was so concerned by the situation in the High Court earlier this year that it was considering “making a recommendation outside the 1% pay norm”.
The SSRB went on: “However, before we could report, the MoJ notified us of the government’s own decision to put in place a new allowance worth 11% of pay for some judges in the High Court in England and Wales.
“The government did not seek the independent advice of the SSRB on this matter.”
The SSRB said that, despite the new allowance, there had been an “unprecedented number” of unfilled vacancies in the High Court, combined with a “significant increase” in the number of early retirements.
“Last year there was a failure to recruit to one post, which in itself was unusual. This was followed by an exercise to fill 14 posts in which only eight judges were recruited. Currently, a further exercise is being run to appoint 25 judges.
“High Court judges, like the rest of the judiciary, are mainly recruited externally, but the candidates tend to be particularly senior and generally highly paid individuals.
“This group has traditionally accepted that they would see a significant fall in salary if they joined the judiciary, but recent changes to judicial terms and conditions have made the offer much less attractive to them.
“The evidence now shows a very worrying recruitment and retention trend.”
Looking at the judiciary as a whole, the SSRB said morale had “declined further, from already low levels, in the last two years”, and a combination of factors were responsible, including dissatisfaction with the taxation of pensions, increased workloads, poor working conditions, increased numbers of litigants in person and “a sense of not being valued by the government”.
Given low morale in the judiciary, the review body added that the government should “carefully explore the scope for pay and pension flexibilities, as found in the private sector”, to support the judicial workforce.