A few days ago I retweeted an article written for The Law Society Gazette by Peter Glover, who was a very experienced district judge until his retirement from the Bench last year.

I added the comment

“This article by a very well respected district judge who retired last year deserves careful study by those now preparing election manifestos.”

Because my comments have already attracted 100 “retweets” and almost as many “likes” I thought it worth quoting some of the salient points he made, and adding a few reflections of my own.  Because the deep concerns about the treatment of a handful of young High Court judges attracted most media attention, I am restricting the quotes to his description of the state of morale among judges lower than the High Court Bench.

He wrote:

One of the last things I did before retiring as a judge last July was to complete the Lord Chief Justice’s second Judicial Attitude Survey. He alluded to the findings in his third annual report to parliament last October, when the Gazette reported ‘a crisis in the courts which is sending morale in the judiciary plummeting and inhibiting recruitment’.

Now, with the publication of the survey, the cat is properly out of the bag and the summary reported by the Gazette … is sobering indeed. The apparent breakdown of the relationship between the executive and the judiciary is indicative of an unprecedented constitutional crisis. This has been exacerbated by the ill-informed outbursts of the media over the Article 50 litigation and by the failure of the secretary of state for justice adequately to prioritise her duty to support the judges over her fear of the Daily Mail.

However, perhaps the clearest signal that something has gone gravely wrong is the successful discrimination claim brought in the Employment Tribunal by 210 serving judges against the justice secretary and the Ministry of Justice over pension ‘reforms’. Press reports focused on the involvement of six High Court judges to the exclusion of circuit, district and tribunal judges who made up the great majority of the applicants.

The report of the case reminds us that when the pension reforms were put in place in 2012, with effect from 2015, there were … 294 younger judges who would be moved into the scheme at various times after implementation under the tapering provisions; and 279, younger still, who would be retrospectively deprived of the pension provision in force when they were appointed and instead enrolled in the much less generous replacement scheme. The extraordinarily high proportion of those judges prepared to sue the government indicated the strength and depth of judicial anger and anxiety aroused by the reforms….

… Of course, little public sympathy could be expected concerning the remuneration of such well-paid individuals, but the retrospective imposition of the pension changes was a stark matter of principle. There was no particular reason why the government could not legislate to reduce pension entitlements for judges appointed thereafter. This was the course taken in 1993 when the second Judicial Pensions and Remuneration Act added five years to the service required to achieve a full pension (from 15 to 20 years) and imposed mandatory retirement at 70.

…

It would be a supreme irony if the revolt of the junior judges, successful at first instance in the Employment Tribunal, were to result in the rolling back of the new pension scheme. The executive would have gained nothing but at the expense of the poisoning of its relations with the judiciary for a generation, and provoking what may prove to be an oncoming avalanche of retirements and long-term ill-health absences, leading to a recruitment crisis across the board, particularly at the higher levels, which would undermine the effective operation of the courts in this jurisdiction.

Reverting to the situation in 2003, one can only speculate whether this distasteful situation would have been avoided had there been a ‘proper’ lord chancellor within the executive and in the cabinet.

…

At the lower levels, as the survey of attitudes reveals, 42% of judges in post would quit if they could and 37% of court, as opposed to tribunal, judges intend to quit in the next five years, perhaps on completing their 20 years or attaining retirement age.

The reasons for this malaise are various, but can be summarised as the consequences of under-investment by government in court workers, staff and judges, and their workplaces. For every Crown Court equipped with shower rooms for judges, there is a county court where the toilets are never properly cleaned.

…

I referred earlier to long-term judicial illness. This was not specifically addressed by the LCJ’s survey but it is, I believe, an issue of real concern. Judges are not just ‘fed-up’. They are subject to stress and anxiety arising, for many, from the gap between resources and demands, and the near impossible task of providing timely dispute resolution for those litigants still able to afford to use the courts. Prevention of such illness and absence has been laid at the door of local leadership judges…

The fact of the matter is that pastoral care is not, and cannot be, effectively provided until it is too late for the judge needing respite. It could be expedited by self-reporting, but that may be seen as an admission of weakness and such self-reporting is unlikely to flourish if a career judiciary is instituted (as suggested most recently by Ryder LJ). Local colleagues are unlikely to provide reports to the leadership judges without consulting the judge affected before something wholly exceptional has occurred, and he/she is likely to attempt to dissuade them from reporting for the reasons already given. Judicial ill-health undoubtedly affects a more substantial minority than is apparent. While the help and care available once something has happened is of high quality and Equality Act adjustments may assist the recovering judge, by then the damage is done….

It would be nice to conclude that help is on the way: that HMCTS will find ‘business cases’ for appointing new judges to replace those who have recently retired and that the redeployment of, for example, some tribunal judges into the courts will make a decisive difference. Unfortunately, the outlook is bleak – so bleak indeed, that the only remedy is to dismantle the county court system in place since 1846 and replace it with an untried and hugely ambitious online justice system where personal interaction between judge and litigant is the exception to the rule. We must all hope it is successful, because there will be no way back.

Since 2002 I have repeatedly expressed my concerns about chronic under-investment in our court system.   One of the comments I received this week came from someone who had done a mini-pupillage last year and had been shocked to find at one county court that half the chairs were broken. This mirrored the experiences of Angela Eagle MP who told the House of Commons yesterday:

When I was recently called to do jury service, I got the chance to experience at first hand the current state of our courts. The jury canteen had to close down because it malfunctioned, the ladies’ toilets malfunctioned, the water machine malfunctioned and the computers malfunctioned, meaning that juries could not even be chosen. Despite the fantastic and very patient work of the employees of the court system, the whole thing was a mess, and it was in need of substantial financial investment. 

How can judicial morale have plummeted so much since I left the Bench ten years ago?

I have just reminded myself of some of the comments made in speeches in the House of Lords during one of the culminating ping-pong sessions which marked the passing of the Constitutional reform Bill through Parliament in the spring of 2005.  In a debate which led to the House of Lords reasserting that a new style Lord Chancellor must not only be a lawyer but also one who inspired the confidence of the judges, these remarks were made:

Lord Lloyd of Berwick:

I have said already that one of the most important—if not the most important—functions of the Lord Chancellor is to be the representative of the judges in Cabinet and a spokesman for their views. Putting it another way, he is to be the intermediary—or, if you like, the bridge—between the Executive on the one hand and the judiciary on the other hand. One does not need to be a far-seeing prophet to realise that that function will have an increasing importance in the years to come.

To do that job—to act as the intermediary or bridge—effectively, the Lord Chancellor clearly needs not only to have the confidence of the Prime Minister; he also needs to have the confidence of the judges. He will only have that confidence if he knows the legal system inside out before his appointment and if he understands the rule of law, in all its many ramifications, through his long training in the law. Above all, if I may put it this way, he must be a lawyer by instinct; a lawyer with an instinct for justice.

But even all that is not enough if he is not also a very senior lawyer. Nothing would undermine the confidence of the judiciary more than if the Lord Chancellor was still on the look out for another job; if he was still looking for political preferment when his particular job came to an end. That is why, as has been said so often during these debates, the Lord Chancellor needs to be at the end of his career—or at the peak of his career, put it how you will—and not half-way up the greasy pole.

Lord Phillips of Sudbury:

… Lord Kingsland referred to the oath in which the Lord Chancellor says that he will defend the independence of the judiciary. How can a lay person satisfactorily do that without any knowledge of sitting as a judge and without any inside knowledge of the way in which the judiciary is subject to huge pressure, as it is? The exceptional person might be able to do that, but we deal with the generality.

Lord Ackner:

… Lord Mackay of Clashfern, who has considerable public relations skill, went around the circuits visiting the court staff in order to understand better what, if anything, was troubling them and to show that they were cared for. This was very successful. It needs doing more nowadays, because the Treasury has acted with such meanness that there is constant change of staff in the county courts and an inadequacy of assistance and training.

It is difficult to understand how a non-lawyer could possibly cope with that situation. It is being overlooked by the Government, and by … the Lord Chancellor in particular, that one of the remaining obligations—and it is an enormous obligation—is running the court system. How can a person be expected to run a court system competently if he is not a lawyer with considerable experience?

Whatever the complexion of the Government that will take office next June, surely the time has come to revisit that debate.  Did we take a wrong turning 12 years ago?  At that time the Conservative Party seems to have thought so.

Alexander Hamilton said that the judiciary is the weakest of the three arms of Government.  In recent years it has seemed that the executive has taken advantage of its weakness far too often.  Hence the near-current collapse of judicial morale today.