The brightest and the bench

Mr Justice Eder is to retire from the High Court bench on Wednesday. There will be no valedictory speeches, no farewell interviews. A discreet announcement is to be made the following day.

Why the reticence? It is because Sir Bernard Eder is only 62. He has been a judge for little more than four years. He could have been promoted to the Court of Appeal and stayed until 2022. There is no disguising the fact that he is retiring early.

Why, then, is Eder going? He won’t say. But there is not the slightest whiff of scandal; no highly-paid offer from a foreign court; no plans to set up as an arbitrator. Those who know him believe he just does not enjoy the work.

If one person is dissatisfied with a service, you look at the person. If there are several, you look at the service. And Eder is not alone. Two years ago Sir Nicholas Stadlen retired after five years in the High Court because, he said, of his wife’s ill-health. He was also 62 at the time.

Both Stadlen and Eder had joined the bench from prestigious commercial chambers. Both were used to working long hours on the most intellectually demanding cases. But neither took to the relentless nature of court business, where judges have no control over their own diaries and are not allowed the time to write the sort of judgments they believe their cases deserve.

It is the commercial specialists who make the biggest financial sacrifices to join the bench. Of course, they are likely to have made enough money at the bar never to need to work again; and a judge’s salary is hardly insignificant. But it is becoming increasingly difficult to attract the best candidates to the commercial court – and its specialist offshoot, the technology and construction court, where there are two vacancies to be filled.

If the best judges retire early and only those in the second tier are willing to join, the reputation of the bench will suffer and the brightest candidates will never apply

Sir Vivian Ramsey headed that court and was a judge for nine years. But he was still only 64 when he retired last year to join the Singapore International Commercial court, along with Sir Bernard Rix, 70, who had left the Court of Appeal six years before his retirement age.

The Judicial Appointments Commission recently told the Senior  Salaries Review Body that the ratio of outstanding candidates to vacancies was falling. Commissioners had ‘some anxiety’ about whether they would succeed in appointing sufficient candidates of the required quality in the current round of High Court appointments.

The lord chief justice went further. Although recruitment to the more junior levels was relatively buoyant, Lord Thomas of Cwmgiedd expressed ‘grave concern’ in oral evidence. He said it was essential for the standing of the justice system, here and overseas, that there be a depth of candidates of outstanding quality for the High Court bench, and he was most concerned about those doing commercial, chancery and financial family work.

The review body said Thomas had told it of ‘anecdotal evidence that pension changes, work pressures, and the failure to provide modern working conditions was deterring the most accomplished and highest-earning practitioners from applying. He thought that the gap between High Court remuneration and the average earnings of practitioners was widening dangerously’. Thomas’s remarks were repeated by his counterparts in Scotland and Northern Ireland.

It would be easy to write off the chief justices as shop stewards demanding more pay for their members. The lord chancellor Chris Grayling said there were far more applicants for the judiciary than vacancies and the Ministry of Justice insisted that the recruitment position ‘remains healthy’. This misses the point. Nobody doubts that vacancies can be filled. The question is: by whom?

At the request of the senior judiciary, the Judicial Institute at University College London conducted a survey of all full-time judges in the UK last autumn. The response rate of 87% was extremely high. Of those who responded, almost a third said they would consider retiring early. The proportion went up to a half when the undecideds were added. And it is not hard to see why. A new pension scheme takes effect this week and High Court judges who join it will be charged £12,000 in tax. Thomas expected that some judges would not be able to afford to join the new scheme, leaving them without a pension. Others will gain no benefit by joining.

But this is more about status and reputation. I fear we have reached the tipping point identified two years ago by the Senior Salaries Review Body. If the best judges retire early and only those in the second tier are willing to join, the reputation of the bench will suffer and the brightest candidates will never apply. If that happens, we shall all be the poorer.

joshua@rozenberg.net