High Court judges not 'fustian', says Lord Judge

High Court judges are no longer elderly and old-fashioned, the Lord Chief Justice said today. Lord Judge was introducing new research into the reasons that some highly-qualified candidates do not seek judicial appointments.

He summarised one of these as “a general concern about working in an old-fashioned, fustian atmosphere, with old-fashioned, fustian colleagues”.

Leaving aside the quibble about Lord Judge’s chosen adjective — I would have written “fusty”, which has a different etymology — he makes an important point.

“High Court judges are, in the main, in their fifties and sixties, with a sprinkling of new judges still in their forties and a very small number of older judges in their early seventies”.

And the job is not as solitary as some may imagine. “One of the most striking features of this apparently disparate group of independent-minded individuals is the warm collegiate support that they offer to each other,” Lord Judge said.

Another disincentive identified in the research by Prof Dame Hazel Genn was the requirement for High Court judges to sit “on circuit” outside London. The requirement does not apply to those appointed to the Chancery Division, who have traditionally not been regarded as capable of trying criminal cases.

But the system for circuit visits is extremely flexible, the Lord Chief Justice insisted. Exceptions are made for those with sole responsibility for young children or elderly parents.

“In practice, those who expect to dislike circuit visits often find, after appointment, that it is far more enjoyable and less disruptive than they had feared,” Lord Judge explained. “It is a matter of regret to me and my colleagues on the Judicial Executive Board that the perceptions of life on circuit reflect what happened years ago.”

Dame Hazel, professor of socio-legal studies at University College London, interviewed six recently-appointed High Court judges and 29 senior lawyers. Of the practitioners, 21 were barristers and all but two of them were QCs. The remaining eight people interviewed were senior solicitors in the big “magic circle” firms.

Initial respondents recommended other interviewees to produce a so-called “snowball sample” — no good for statistical analysis but very useful if you are trying to understand a particular group of people.

Most of the practitioners had no immediate intention of applying for judicial appointment and thought it unlikely they would apply in the future. Their reasons, roughly in order of frequency, were:

• Less challenging work or unfamiliar areas of law as a judge; and less control of one’s workload than when a practitioner

• Need to spend time away from home “on circuit”; combined with formal environment of judges’ lodgings

• Cut in salary from £500,000 or more to £165,900; often when there were young children to support from a second marriage

• Loss of autonomy in deciding working hours

• Preference for advocacy rather than decision-making, despite a willingness to give robust advice to clients

• Temperament more suited to the Bar than Bench

• Isolation from former colleagues and lack of support.

These were neatly encapsulated, Dame Hazel concluded, in the reasons given by four QCs who had turned down judicial appointments in the days when all that was required was a proverbial "tap on the shoulder" by the Lord Chancellor.

Case 1: Female silk
“I have no interest in full-time appointment. It is the conditions of service. Five-fold reduction in income. Less control over professional life and I would feel bound to go on Circuit. It would involve being away. I have young children and I am not willing to do that. I’m married and I like to have dinner with my husband and friends rather than talk to a load of High Court judges. And also the social milieu. I’ve sat as a Deputy and I don’t find the High Court encouraging of collegial enterprise… The hours of service are also an issue. 60-70 hours. That is similar to me, but I feel I have a choice and feel very well rewarded for what I do. But judges have a huge workload and other activities. I can take a week off if I want to. The loss of autonomy and flexibility is an issue… There is no guarantee that you would get to the Court of Appeal. The idea of spending the next 15 years of my life being a High Court judge doing rubbish work is frankly too depressing to contemplate... [The Lord Chancellor] tapped me on the shoulder when I was 45... If I had had no family at all my sense of public duty might make me do it. But when you see the reality of what you have to do on the High Court Bench – work like a dog, lots of extra-curricular stuff and administration…”

Case 2: Female silk
“I found being an assistant recorder awful. I decided it was a nightmare. During my two week sitting it became completely obvious that I was not suited to the role. I am not very judgmental. I can always see the other side. I didn’t enjoy the work. I really, really didn’t enjoy it. I am happy giving really strong advice in my practice, but I did not enjoy judging. Also, I hated not knowing about criminal law and having to sit. A few years later, I was asked if I wanted to be a High Court judge and I said ‘No’. Then [the Permanent Secretary to the Lord Chancellor] asked me to go and see him. He wanted to check and asked me to reconsider. I would have had
to go on Circuit and that for me was non-negotiable… I couldn’t possibly have gone on Circuit. I wanted to be at home. Nothing has happened since to make me regret my decision. Money didn’t come into it at all. It wasn’t a factor.”

Case 3: Male silk
“I was offered the High Court by [the Lord Chancellor] and I said ‘not yet’ and I have never found a ‘yet’. At the time, I didn’t feel I could afford the High Court. I had young children at private school. And it would be the QB and I had no great love of the idea of going out on Circuit… I don’t like being away from home to be honest. I don’t want to be away from my wife… It would help if you could negotiate Circuit. I hear that judges on Circuit are now being put up in hotels. Having to live in a hotel is appalling beyond belief. Hotel life is hateful. I don’t think policy people understand this… I’ve enjoyed my practice hugely. The life of a High Court judge doesn’t strike me as hugely attractive. Lots of boring stuff. Procedural stuff. Litigants in person… And you are no longer your own master. I have quite a bit of control and if a case settles, I take time off. In the High Court, if a case settles they give you the next one… It is a more rackety life at the Bar. The obvious attraction of the Bench would be a regular salary and pension, but I have already provided for my pension so that is not vital for me, but it is for some people.”

Case 4: Male silk
“My shoulder was tapped and I said ‘No, not for the moment’. I said ‘No’ because I was still enjoying the Bar. You should not take on the job of judge unless you are absolutely sure that’s what you want to do… If you’ve got friends who are judges, you should know what’s expected. I didn’t feel at that stage I wanted to do it. I didn’t want to give up the Bar. I didn’t want a full-time judicial appointment. What most of us enjoy, if we are lucky enough to be a senior silk, is that we are very well paid; we have interesting jobs; we do a variety of things and life is much more flexible. If you finish a big case, you can take a breather. And if I’m not in court and something interesting is happening at home – like going to watch a child play football – I can do that. I like the flexibility and the autonomy. I declined the offer of appointment. I said ‘not yet’. I might do it, but I am not 100 per cent sure. Ignoring the money, as long as I’m enjoying the Bar and the challenges and the freedom, I am not sure I want to have to give that up. You get boring cases as a barrister and as a judge. But it’s about being an employee.”

Posted at January 7, 2009 12:06 PM