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“The Court of Common Pleas” (1808-1810) by Thomas Rowlandson and Augustus Charles Pugin, from the series “Microcosm of London” (©Historical Picture Archive/CORBIS/Corbis via Getty)

The common law has been shown to be inseparable from the judges who administer it. A third potential threat would arise from a decline in the quality of the judiciary. Distinguished judges have long been alive to this danger. When Lord Goff wrote about it in 1997, it was still normal for top QCs ultimately to abandon a successful practice and accept the invitation, as in those days it was, to a (far less lucrative) High Court appointment. He recognised that if this delicate balance were upset, “it could be disastrous for the whole future of our legal system”. Lord Bingham, speaking in 1999, was in no doubt: “If the bench were to become the refuge of the mediocre . . . the timid and the unsuccessful or if the appointment of judges were to be blighted by a search for the safe, the conformist and the representative . . . the quality of justice would suffer and respect for the law decline.”

The quality of the English Bench is still remarkable in many instances. Regrettably, however, in relation to some current or recent judges, and even allowing for the inveterate tendency of policemen to get younger, almost all of Lord Bingham’s adjectives strike a chord of recognition within the profession. The reasons for this state of affairs were discussed at length by this writer in an article published in the January 2017 edition of Standpoint (“Who will do justice to our judiciary?”), to which interested readers are referred. There exist serious problems of recruitment to the High Court bench. These are attributable to the misconceived constitutional reforms of the Blair government, in particular the 2005 abolition in all but name of the Lord Chancellor (formerly the representative of the judges within the government and Parliament), the devolution of responsibility for the judiciary to the Lord Chief Justice, who lacks any comparable powers to champion them, the introduction of an infantilised, process-driven method for applying to become a judge, and a serious deterioration in judges’ terms and conditions of work.

This last factor is not just about money — though the judges have been treated shabbily enough in this respect to have attracted the concern of the Senior Salaries Review Board, as well as the House of Lords Constitution Committee, whose November 2017 report into judicial appointments makes grim reading. In 2016, some judges were driven actually to sue the government over pension cuts. (The judges won the first round; the government has appealed.) There are many other pressures on judges, most obviously overwork. Appearances before the Court of Appeal, for example, sometimes leave the impression that these conscientious public servants are no longer given enough time to do their job. Cases are compressed into unrealistically short time estimates; oral advocacy is pared down; written arguments are subject to arbitrary page limits. The wonder is that the judges are able to produce judgments which look coherent; but none of this necessarily conduces to the fairest outcomes. Those who work in other public services may have had to endure this relentless Procrusteanism for a long time. In the upper reaches of the legal profession (though not elsewhere within it), this is something quite recent.
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