Predictably it did not take long for the theoretical questions about the appointment of Mr Chris Grayling as Lord Chancellor to be repeated in a practical context. One of his first duties in office has been to grips with a dispute inherited from his predecessor, Ken Clarke, concerning judges’ pensions. The executive is on a cost-cutting mission, and it seems not even the judges are exempt from its financial scythe.
Joshua Rozenberg has more details here. Traditionally, the Lord Chancellor would be expected to start at the very least as a neutral party in a dispute between the judiciary and the executive (wearing three hats as the old position used to entail: member of the bench, the cabinet and the Lords). As a senior QC, a Lord Chancellor of old would not need a political career for his income or prestige, nor would he or she fear adverse consequences for a future career as a barrister by taking a stance against the judges. To put it bluntly, a silk of many years standing could afford to have principles. And a silk would be well versed in concepts such as judicial independence.
Mr Grayling, by contrast, as a career politician, may not have the same luxury or expertise. Cynics might observe that a recent phenomenon in British politics is the rapid growth of a class of people never to have a job outside politics, journalism or academia, and whose ability to act independently of their paymasters is constrained accordingly. Mr Grayling, it has been inferred, would therefore have a strong personal incentive not to rock the executive’s boat.
His difficulties are increased by the fact that as well as Lord Chancellor he also holds the position of Secretary of State for Justice. Therefore, even if he was determined to be robustly independent as Lord Chancellor, he (as with all recent holders of the office) also has to consider his duties as a member of the cabinet in another role. A dispute over judicial pay is a classic example of a situation where separate holders of the respective offices might be expected to want different outcomes.
Mr Grayling can be excused for feeling as though he is Pooh-Bah in the Mikado considering how to fund Ko-Ko’s wedding, for which purpose he has to reconcile his duties as First Lord of the Treasury, Lord Chamberlain, Attorney-General, Chancellor of the Exchequer, Privy Purse and Private Secretary. (Though at least we can be sure that Mr Grayling will not adopt Pooh-Bah’s suggested solution that a large enough bribe all round ought to square it)
Mr Rozenberg warns the dispute over pensions may become bitter enough to end up in court. A few years ago the constitutional law expert Sir Geoffrey Palmer recalled a similar dispute when he was in the New Zealand government. The judges backed down and, as a face-saving measure, said they had done so because there was no impartial tribunal that could have heard the case. As Palmer pointed out, however, it could have been heard by a retired judge (or the Privy Council, though that option would not be available in Britain unless the board was to comprise exclusively Commonwealth judges).
Turning to the substance of the dispute, Mr Rozenberg rightly warns of the danger of reducing judicial pensions. Already senior judges earn substantially less than senior barristers. In an age where the culture of service seems to have markedly declined (though the judiciary is one place where it remains alive as much as anywhere) further reductions in income will be a strong disincentive for the best candidates to want to apply for the bench.
One point made by Mr Rozenberg needs some expansion. He writes:
But the road to a full-time judicial appointment is a one-way street. By convention, you can't return to life as a solicitor or barrister.
It is true that that has been the convention but (as Mr Rozenberg is certainly aware) as with much of our unwritten constitution it is not binding; hence the term “convention”. In modern times the late Sir Hugh Laddie retired early from the bench and became a specialist practitioner. Lord Pannick QC wrote in support of his right to do so in the Times. Mr Justice Peter Smith negotiated for a time with a prominent City law firm about joining them from the bench – an episode with a most unfortunate aftermath, as well chronicled at the time by Mr Rozenberg himself and others. As it happens, New Zealand also has some recent examples, one where Williams J returned to the bar very soon after joining the bench, having found it not to his liking, and another where a district court judge pleaded guilty to criminal charges after fiddling his expenses and also went back to private practice (though as I recall not in a capacity in which he would appear before the courts).
If judicial pensions are cut by a tangible amount, then one imagines that the move from bench back to private practice might become more common, and after a time only those barristers whose careers do not provide an income much superior to the bench will be tempted to apply (or perhaps they will demand a Sumptionesque bypass to the Supreme Court). The consequences will not be to the nation's advantage.