Courts: Resourcing and Staffing

Lord Judge Excerpts

Thursday 14th July 2016 Lords Chamber

[Lord Judge (CB)]

My Lords, there has been an awful lot of trepidation about, and I join in that. My trepidation is very simple: I have sat and listened to a number of speakers who have said everything I wanted to say and said it more than once, so I am faced with the dilemma of whether to sit down.

On the one hand, I have had many conversations with the Lord Chancellor’s Department when saying something once seemed to fall on chronically deaf ears, and saying it twice, three or even four times never seemed to do the trick either, which is an encouragement to me to say everything I was going to say and therefore have it repeated. On the other hand, I see old friends here, including the noble Lords, Lord Faulks and Lord Thomas of Gresford, and I know perfectly well that if they had been the seventh speaker in a line of distinguished counsel and were going to say what everybody had said before, a few years ago I might very well have said, “Lord Thomas, do we really need to hear that again?”. Torn as I am, and full of trepidation as I continue to be, I will compromise and talk about only one thing, which the presence of the noble and learned Lord, Lord Mackay of Clashfern, who has just arrived, entitles me to do. That is the position of the High Court Bench.

I was asked to go and see the noble and learned Lord, Lord Mackay, way back in 1988. When he suggested that he might recommend me for appointment to the High Court, I thought that he had paid me an astonishing compliment and that what he was in effect offering me was a considerable honour. I also remember the conversation. I am sure he does not, and I hope the House will not mind this little reminiscence, because it was an example of the noble and learned Lord at his most amazing best. As the conversation was unfolding, I muttered slightly under my breath, as there was a little problem in that I had only recently been elected leader of my circuit. That gave me pause, to which the noble and learned Lord said, with all the wisdom and humour that he is notorious for, “Mr Judge—Igor—you are not really saying, are you, that there is nobody else on your circuit who could take on the role of leader of the circuit?”. Of course I had to deny that, as my circuit was fully adorned with people able to do it, so I accepted the appointment.

The situation that applied when I was appointed and for many years after, and the sense of honour that went with appointment to the High Court, have largely disappeared, for a number of reasons, some of which have been discussed. One is that I was tapped on the shoulder. I never made an application, I did not fill out a form and I was not interviewed. Presumably the Lord Chancellor had taken account of the way I did my work and everything about me—how I had been sitting as a recorder and so on—but I never made an application.

Now, it is not the application process alone, and there are gazillions of reasons why different people from the very brightest parts of the legal profession—in which I include solicitors as well as barristers—do not come to the High Court Bench. It does not matter what the reasons are, but there are many of them. However, reinforcing what the noble and learned Lord, Lord Woolf, said earlier, I have reason to believe that not every vacancy in the High Court Bench has been filled. That is not to say that there have not been many applicants—there have—but, if we are to maintain the standards that we require, only the very best will do, and we cannot have a deterioration in the quality of the High Court Bench as a result of simply putting bottoms on judicial seats.

Pause, and add this. We are losing good—admirable—judges at High Court and Court of Appeal level not merely because they have come to the age of 70, as to which I adopt everything that the noble and learned Lord, Lord Brown, said. People are retiring before they have got to 70, before they have attained the full pension that they would be entitled to. Losing people there itself tells the story. Why on earth are people retiring? It is a fascinating job. It is a wonderful responsibility. It is not always easy, but it is a remarkable opportunity to do something yourself in exchange for the joys you have had from your profession.

We have to find 15 new High Court judges next year. Over the next three years, the best estimate that can be made is that we will need about 40. They do not grow on trees. Unless the arrangements for appointment to the High Court Bench are addressed, and urgently, and whatever may be needed is provided to attract the brightest and best, we will suffer a steady diminution in its quality.

At the risk of repetition, these are the judges who decide whether the Government or large parts of our system have been acting unlawfully or lawfully—it is the rule of law. These are the judges who the Rolls Building, the commercial court and the Chancery Division have been attracting because of the quality of justice that is offered there—in particular, the independence of the judge and his or her integrity. When I retired, the sheer import to us of wealth through having a first-class legal system was worth not far short of 3% of gross domestic product. Let us not forget also that the most sensitive and difficult of trials—of terrorist cases and profoundly troublesome murder—are tried by a jury with High Court judges.

We cannot afford any diminution, yet we cannot afford not to fill these spaces. That problem has crept up on us unseen and unnoticed, except that we now know of distinguished men and women at the Bar who will no longer apply for a job of the kind that the noble and learned Lord, Lord Mackay, offered me all those years ago. It is a problem of which the present Lord Chief Justice is acutely aware. We have a new Lord Chancellor. We have a new chairman of the Appointments Commission. I fear they will have to work very hard and urgently to resolve the difficulty.