If a career on the bench is not made more attractive financially, the rule of law could be undermined, and with it lucrative industries vital to post-Brexit economic prosperity, the departing president of the Supreme Court has warned.
He also reported that the rise of litigants-in-person (LiPs) in civil and family cases was pushing judges to adopt an ever-more “inquisitorial, civil law function”, leading to longer hearings and delays.
Lord Neuberger, who is due to retire from the bench in the autumn, sounded the alarm during a speech earlier this month reflecting on his two decades as a judge – the Neill Lecture 2017.
He said the number of barristers who shunned a career as a judge was growing. While appointment to the senior judiciary was still “immensely rewarding”, the heavy workload together with “the increasing gap between judicial pay and the reward of successful private practice means that appointment to the High Court is significantly less attractive than it was”.
Figures released recently by the Bar Council – first highlighted by Legal Futures – showed that more than 2,500 of the nearly 16,000 practising barristers earn more than £240,000 a year gross. High Court judges take home an annual salary of around £180,000.
Lord Neuberger continued: “The proportion of refuseniks is increasing, and while it is not yet, it could become a real problem if it continues.
“The concern is not only that it will undermine one of the two fundamental pillars of our society, the rule of law, if we do not have a first-class judiciary.
“It is also because a first-class judiciary underpins the whole financial and professional services industries which are so vital to the fortunes of this country, perhaps particularly in the post-Brexit world.”
He recommended the judiciary should look beyond the independent Bar and recruit from among “solicitors, employed lawyers, academics and any other group where one could realistically expect to find potential judges”.
However, while “the serving judiciary should be encouraging members of under-represented groups… to apply”, merit should remain the “ultimate standard” for selection as judges. He added: “To dilute the quality of our judiciary would be to erect a milestone on the road to perdition.”
Lord Neuberger warned that the rise in LiPs in civil and family cases, as a result of shrinking legal aid and high litigation costs, presented a “real risk of this reducing access to justice, the quality of justice, judicial well-being and court efficiency”.
He went on: “It remains to be seen what the long-term effect of the increase in [LiPs] will be, but it has already started drawing judges into assisting or at least focusing on [LiPs], but this involves getting off the umpire’s chair and stepping onto the court.
“This leads to longer hearings, which in turn leads to more delays in other hearings.
“Furthermore, with the Woolf and Jackson reforms and their equivalents in the Family Division, judges in this country may be developing an ever-increasing inquisitorial, civil law, function.”
He questioned the value of disclosure of documents and cross-examination of witnesses to the final result of cases, given how much they added to the cost of litigation. But he admitted his scepticism was founded on “impression and experience”, and expressed the hope that “statistically reliable analysis” might support the proposition if a “practically feasible experiment” could be devised.
In a wide-ranging speech beginning with recollections of his earliest days after elevation the bench, Lord Neuberger said that while he found the transition from “poacher to gamekeeper” straightforward, it was lonelier than being a barrister in chambers.
Running a trial required qualities such as “grip, authority, politeness, fairness, and an ability to simplify and an ability to express yourself”. He added: “In many ways, running a trial is like chairing a rather tense and rather formal meeting.”
He stressed that the Supreme Court had been careful to maintain “an appropriate balance between judicial intervention and judicial restraint”. In particular, in the recent Miller case on Brexit, among other cases, it had been “at pains to emphasise the fundamental importance of parliamentary sovereignty in the UK’s constitutional arrangements”.
He also highlighted the value to the Supreme Court of legal arguments between judges out of court, even suggesting that where all the judges appeared to agree on a case, it may be worth appointing a judge as devil’s advocate to produce a draft dissenting judgment – “for the purpose of maximising the quality of the ultimate judgment of the court.”