John Forsyth: Top-table trials and tribulations

By John Forsyth
Published on 02/07/2012 02:39

LESS cash, more work – has the recruitment of Scotland’s senior judiciary come down to a wig and a prayer, asks John Forsyth

It may be asking rather a lot of the passenger on the No 23 bus passing Scotland’s Supreme Courts in Edinburgh to accept that judges are underpaid. The appointment of Lord Gill as successor to Lord Hamilton created a vacancy as Lord Justice Clerk, second in the Scottish judicial hierarchy. The job ads are out, the selection panel has been named and the closing date is this Wednesday. Salary: £206,857 with pension scheme and attractive holidays.

There will be a further recruitment round in September for senators to replace up to three imminent retirements. Even as junior members of the senior judiciary they will be paid £172,753. A sheriff gets £128,296.

Though these are handsome rewards by most measures it is a reality that high legal flyers who might be thought to be sufficiently experienced, eligible and intellectually equipped to be judges may already be earning several times more in private practice.

Lord Hamilton earlier this month expressed fears over the recruitment process and the recent relatively low number of applicants, including one round where the independent Judicial Appointments Board Scotland (JABS) felt unable to make an appointment from among the four who put themselves forward.

So would an additional 50 grand make any difference to the number of applicants?

The three appointees last month were all high-earning advocates. However, enquiries among former judges and those who might be likely candidates reveal several reasons for reluctance to apply that are more connected to the work, the declining public standing of judges, and the application process itself.

The unanimous concern, and usually the first expressed by everyone I talked to, was that “the process leaks like a sieve”. The names of applicants seem to become known on the grapevine very quickly. It isn’t only that it can be embarrassing at a personal level but it was frequently pointed out it can be seriously damaging financially.

One advocate observed: “If it becomes known that you are applying for the bench your practice crashes. No-one is going to instruct you in a case that needs preparation now but which might not get to court for a year if you can’t be counted on to be there.”

The hit to the bank account will be harder to bear for unsuccessful applicants.

It isn’t suggested that leaks emanate directly from the JABS, in charge of the equal opportunities selection process since 2002, rather that its requirement for external references sets the grapevine trembling.

The second most frequently voiced reservation is the nature of the job itself. Compared to a generation ago when the workload was lighter in both civil and criminal fields, the perception is that it is something of a treadmill. And for applicants who have concentrated on civil law by career choice it can be something of a culture shock to find themselves spending most of their days overseeing criminal trials.

Perhaps the third reason is connected with the dominance of criminal work, with the consequence that judges find themselves in the headlines and their sentencing decisions pilloried in the mainstream media for being too severe. Or too lenient.

“It’s not just hurtful for the judges,” said a senior member of the Faculty of Advocates. “It’s pretty hard to take for their family and children. There is a feeling that judges aren’t protected enough from personal abuse.”

The fourth apparent disincentive is the perception of the application and interview process itself, described by a member of the bench as “trial by ordeal”. It isn’t so much that prospective candidates feel they are too grand to go through a transparent procedure but the requirement to produce a presentation and conduct an interview in what was described as “the language of HR” can drain away enthusiasm. A member of the bench observed: “I wonder how many of the figures of stature on the bench in past years would have been screened out at the application sift, never mind convince the interview panel?”

Money did eventually come into the conversation, albeit indirectly, connected to the overhaul of judicial appointments that fixed the mandatory retirement age at 70.

Lord McCluskey spent 20 years on the bench after a long career at the bar and as a law officer.

“I was ready for it,” he said. “I’d done everything I wanted in 29 years in practice. But I was 55. If you want to get a full judicial pension nowadays you have to be on the bench before the age of 50. Not only is that the age you are still approaching your prime in practice – you may feel you have unfinished business at work – but you are also likely to have peak demand from you own family financial demands. I’m afraid most of us tend to live up to our income.”

Prior to 2002, Lord Advocates and the Dean of the Faculty of Advocates almost inevitably made it to the bench. It did not look good, especially when a Lord Advocate as a political appointee would have his mind concentrated whenever a general election loomed, and the choice might be appointing yourself to the bench or unemployment.

Recent deans have not apparently been drawn to the application process, though a member of the faculty advises any holder of the post to think carefully: “Deans are like fish. They all go off in time.”

Lord McCluskey agrees that the old “tap on the shoulder” approach was not transparent but recalls it was balanced by a feeling that once tapped you could not refuse.

“It is a loss that a dean, elected because he is arguably the brightest of his generation, and the Lord Advocate, who has a unique insight into current challenges within the body of law, haven’t been going on the bench.”

None of these observations particularly impress Sir Muir Russell, chairman of the Judicial Appointments Boards since 2008. In fact, he is clearly irritated by them. The field for the round that last month appointed Colin Boyd, Michael Jones and David Burns was in double figures. JABS has amended its approach to taking up references to “hold back the surface area of collateral knowledge” by taking up references only for interviewees, and later in the process.

“Unfortunately, it’s a notoriously leaky profession,” said Sir Muir. “The JABS party line is this: the survey we carried out a couple of years ago indicated a high level of satisfaction for the work we do; we are working to drive up standards and aren’t prepared to compromise on the demands we make on applicants. That is the way the world is. Questions about how judges feel about being on the bench are for Lord Gill as Lord President.”

It has always been the case that judges earn less than the highest-earning lawyers in practice. But there was the “X factor” of a place in the chain of history that has been diluted as the number of senior judges has climbed from 18 to 32 in 20 years.

And, Lord McCluskey recalls of the all-male bench, “wives could be mollified at the prospect of a crash in household income by their courtesy title of “Lady”. The male partners of female senators remain title free.