Is the judiciary in crisis?

This blog was contributed by Charlotte Crilly, Teaching Fellow for Undergraduate Laws.

Lady justice statueThe judiciary is central to the legal system; judges resolve disputes in court and they develop the common law. It’s hard to think of the English legal system without picturing judges sitting in court dispensing justice. Recently, however, a number of factors have come together that suggest that there may be a crisis in the judiciary: a crisis in pay and morale, in working conditions and recruitment.  This blog post rounds up some of the most recent developments.

A shortage of senior judges 

It has been reported that there is currently a ‘critical shortage’ in the number of senior judges. For example

  • More than 10% of High Court judicial positions are vacant
  • The Chancery Division of the High Court is 20% below strength
  • The Chancery Division will be 40% below capacity by the end of the year unless major changes are made.

There is no one clear cause of the shortages. Various potential reasons have been noted, including inadequate administrative support for judges in the courts, a significant increase in workload and inflexible working patterns. Probably the most important cause is judicial pay and pensions.

In response, the government has just increased the pay of judges in the High Court by the considerable amount of 25 per cent to almost £240,000 a year. There is also a 15% increase for circuit and upper tribunal judges. This increase has been said to be temporary, but the government has acknowledged that the increase could be in place for a number of years until judicial pension issues are resolved.

The pensions issues include a legal claim brought by 250 judges who challenged the government’s decision forcing younger judges to leave the Judicial Pension Scheme in favour of a less advantageous scheme. The Court of Appeal ruled in favour of the judges and on 27 June 2019, the Supreme Court refused the government permission to appeal.

Working conditions of junior judges

Concern has been expressed over the working hours of Recorders, part-time judges who usually handle less complicated cases in the Crown Court or sometimes in the County Court. The number of working-days for recorders has been cut and they are being asked to hear cases at very short notice.

The reduction in the number of days worked by Recorders is putting additional strains on full-time judges in the Crown Court. It also impacts on career development for Recorders, which may make them less likely to progress further in a judicial career, at a time when there are serious problems of recruitment to the judiciary. The probable reason for the cuts to the working hours of recorders is the drive to reduce costs by the government.

Report on the magistracy

Magistrates are part-time judges who are not legally qualified, and who work as unpaid volunteers. They decide more minor criminal offences in local magistrates’ courts. However, they are not unimportant: magistrates deal with more than 90% of criminal cases (as well as a large proportion of certain types of non-criminal cases).

Here too there is a problem with the number of magistrates, which has roughly halved in the past decade, to about 15,000. The shortfall means that about 15% of cases are now heard by two rather than the usual three magistrates. The House of Commons Justice Committee has recently reported on the main issues now facing the magistracy, and found that:

  • Magistrates are dealing with reduced support and an apparent under-valuation of the time they give as volunteers. The morale of magistrates is low.
  • There is a near-crisis in the current shortfall in the number of magistrates.
  • There has been little progress in recruiting magistrates from a diverse variety of backgrounds.
  • There are barriers facing employees who want to become magistrates.
  • Magistrates may not have access to adequate training.

 

Why is all this a problem?

The government has commented on the critical shortage of senior judges, noting that it is causing delays to cases like care proceedings involving vulnerable children, immigration and asylum tribunals and commercial cases. The Lord Chancellor argues that

“Our judges are a cornerstone of our democratic society – their experience draws billions of pounds worth of business to the UK, and without them people cannot get justice. We have reached a critical point. There are too many vacancies and with the retirement of many judges looming, we must act now before we see a serious impact on our courts and tribunals.”

A lack of judges therefore affects people’s access to justice, and the way in which their disputes are resolved by the legal system. There are implications for the rule of law – there can be no rule of law without an effective and well-functioning judiciary. And proper pay and working conditions are important for the maintenance of the judicial independence.

So the next time you are reading about the role of the judiciary in the English legal system or even just reading some case law, think about how these practical difficulties that judges are currently facing impact on key legal principles like access to justice, judicial independence and the rule of law.

Further reading

House of Commons Justice Committee report, ‘The role of the magistracy’, 18 June 2019, at https://publications.parliament.uk/pa/cm201719/cmselect/cmjust/1654/165402.htm

Ministry of Justice press release, ‘Government acts urgently to protect judicial recruitment’, 5 June 2019, at https://www.gov.uk/government/news/government-acts-urgently-to-protect-judicial-recruitment

Article on Sky News website, ‘Frustrating and foreseeable – Justice Committee warns of a shortage of magistrates’, 18 June 2019, at https://news.sky.com/story/frustrating-and-forseeable-justice-committee-warns-of-a-shortage-of-magistrates-11743483

Article in The Guardian, ‘Junior judges face zero-hours working conditions, say lawyers’, 30 June 2019, at https://www.theguardian.com/law/2019/jun/30/junior-judges-zero-hours-working-conditions-lawyers

Article in The Independent, ‘High Court judges’ pay raised to £236,000 a year to fill vacancies having ‘serious impact’ on courts’, 5 June 2019, at https://www.independent.co.uk/news/uk/home-news/judge-pay-uk-salary-increase-moj-review-pensions-recruitment-a8946151.html

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.