Latest figures show that it’s becoming increasingly difficult to recruit full-time judges to sit in the tribunals of England and Wales.
Asked last year to fill 70 vacancies in the first-tier tribunal, the Judicial Appointments Commission could manage only 47 recommendations — although there were 360 applications.
In the employment tribunal, things were even worse. Just 75 people applied for 50 vacancies and only 20 of them were suitable for appointment.
By contrast, part-time judicial posts — described less pejoratively as “fee-paid” —were heavily oversubscribed. There were 199 applications for 28 deputy High Court judge posts. There were 636 applications for 15 vacancies among the deputy district judges who sit in the magistrates’ courts. And there were 2720 applications for 116 vacancies to sit as deputy district judges in the county courts. Unsurprisingly, those vacancies were all filled.
It’s not difficult to see why lawyers are reluctant to take permanent judicial posts. Now that part-time judges have had their pension rights restored, the pay for a day sitting part-time is comparable to the pay for sitting full-time.
It’s true that the work done by full-time judges is likely to be more interesting. They also have opportunities for promotion. But it must be very attractive after a month sitting in a poorly maintained building with inadequate resources to return to a law firm or barristers’ chambers where the roof doesn’t leak and the technology works.
The former lord chief justice Lord Burnett of Maldon observed in July 2022 that “as salaried judicial office has become more onerous, fee-paid office, sometimes combining a number of fee-paid offices, has become more attractive”.
Addressing his fellow judges at the annual Mansion House dinner, Burnett continued:
It is the salaried judges who do the more difficult work, the urgent work and, as we all know, additional out-of-court work.
This now needs to be addressed. Salaried judges and fee-paid judges are different. A salaried judge is a judge for all purposes and subject to strict constraints on any other activity. Maintaining a strong cadre of judges who make this career commitment enhances the independence of the judiciary as a whole. Fee-paid judges, by contrast, are something else first and part-time judges second.
There is a long tradition of using fee-paid judges in this country to provide flexibility to help manage variable workloads. It provides an opportunity for lawyers to see whether they like judging and enables them to demonstrate judicial skills before seeking salaried office. Almost all of the judges in this room have trodden this path. The pressure of business following the pandemic coupled with a shortage of judges in some jurisdictions has made us more reliant on fee-paid judges, particularly recorders and deputy district judges. But we will need to restore the balance when we can.
The broad aim will be to have a significant difference between the minimum time a salaried part-time judge can sit and the maximum a fee-paid judge can sit. We will also look at terms and conditions to ensure that they do not positively benefit fee-paid judges at the expense of salaried judges.
It’s probably too soon to assess how much progress has been made with these aspirations. But it strikes me that one factor, above all, is likely to be decisive. The road to the full-time judiciary is still regarded as a one-way street. Although there have been some exceptions, former judges are not supposed to return to the bar or practise as solicitors.
Rather than closing off their options, lawyers have been able to enjoy the best of both worlds by sitting part-time. If the conventions on returning to practice were relaxed, taking a full-time position would become less of a risk.
There must be a lot of disappointed candidates for part-time posts. If some of those who have sat successfully for a few years took the plunge and joined the full-time judiciary, that would make room for others to join and move up the system. The last thing we want in the courts is bench blockers.
In theory the answer to George Peretz KC’s problem is salaried part-time working, which is common and now the norm in some jurisdictions. A headcount of 20 new employment judges is likely to amount to in the region of 15 FTE appointments. The trend towards salaried part-time working is welcome, but also exaggerates the depletion of salaried judiciary. There is a shortage in numbers of salaried judiciary and many of those who are in post will not be working full time.
A couple of points that George Peretz does not mention are that his hypothetical KC/law firm partner is likely (unless in publicly-funded practice) to suffer a considerable drop in earnings if appointed as a junior-level judge. These days even well-paid 50 or 60 years olds may have considerable financial commitments that mean that that is not something they can consider. The second is that salaried appointees are subject to restrictions on outside interests that go far beyond not being able to return to practice. His adopted designation of “A Political Lawyer” and associated Substack would probably not be sustainable if appointed as a salaried judge.
The restriction on return to practice is a vexed topic, particularly given its apparent lack of enforceability, but I doubt it is the biggest problem. It might be possible for a big-name KC to become a salaried judge for a few years, then pick up their practice where they left off, but I can’t see that happening with e.g. a law firm partner who has spent months disentangling themselves from financial partnership and given up all contact with their former clients. Joshua’s article highlights the abundance of fee-paid lawyers, few of whom seem to want to become salaried. Experienced fee-paid judges will know well what it means to be salaried, so should be able to make a decision that they want to take on the role, even if it is a one-way street.
I had read Lord Burnett’s comments as being about making life uncomfortable for those who want to permanently be fee-paid, rather than improving the attractiveness of salaried office. There has been talk in the past of limiting terms of fee-paid judges, but that in itself is highly problematic.
It does seem that the Judicial Office/JAC is struggling to make salaried appointment (whether part-time or full-time) an attractive proposition for those who are currently fee-paid.
Interesting piece. I think there’s another point as well - it certainly applies to me and to others I know in my position (mid 50s, successful lawyers - KC/partner in good firm). For many of us, spending our late 50s and 60s in full-time employment with 6 weeks’ holiday isn’t that attractive compared to an alternative of continued practice (easing off a bit) plus part-time arbitration/mediation plus part-time judging (if we get that) plus non-exec directorships or part time public appointments plus taking much more time off to spend with children/grandchildren and - increasingly - spouses who have retired from other careers. If you offer us the choice of “full time plus 6 weeks holiday” or “don’t bother applying”, many of us will go with “don’t bother applying”.