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Paying Judges: Why, Who, Whom, How Much?

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Paying Judges: Why, Who, Whom, How Much? THE DENNING LAW JOURNAL PAYING JUDGES: WHY, WHO, WHOM, HOW MUCH? NEILL LECTURE 2006 Michael J Beloff QC* My Lords, Ladies and Gentlemen, it is a great privilege for me to be invited to deliver the 5th Neill Lecture following in the footsteps of such legal giants of our time as Lord Bingham of Cornhill, Lord Woolf of Barnes, Lord Steyn and Lord Hoffman, just as the page followed in the footsteps of Good King Wenceslas in the snowy wastes of Bohemia.1 After four aces the Fellows of All Souls have clearly opted to play the Joker. Pat Neill, the honorand, is fit to be ranked with Tom and Harry, not to speak of Johann and Lenny, in the annals of the law although he abstained from taking judicial appointment in this country. Instead, like a modern Pooh Bear, he became Lord High everything else, notably – I make a judicious selection - Warden of All Souls, Vice Chancellor of Oxford University, Chairman of the Press Council, Chairman of the Committee of Standards in Public Life and Treasurer of Gray’s Inn. My path has crossed with Pat’s at several junctures. We appeared against each other in court, most memorably in a case in the Privy Council Ng Enterprises v Urban Council,2 which involved an issue of major constitutional importance, namely whether my client could continue to sell “Mister Softie” ice cream in Hong Kong from mobile vans. There were no Mr Softies in the Privy Council and they acceded unanimously to Pat’s argument that regulation of an activity could sometimes, if not always, include its outright prohibition. When Vice Chancellor of Oxford, Pat invited me to chair a committee which investigated a unique piece of alleged plagiarism in a thesis submitted * MA (Oxon) FRSA, FICPD, FaSS, Hon D Lit Hum (Fairleigh Dickinson), President of Trinity College, Oxford, Senior Ordinary Appeal Judge of Jersey and Guernsey, Master of the Bench of Gray’s Inn, Vice-Chairman of the Information Tribunal, Member of the Court of Arbitration for Sport, Honorary Fellow Institute of Advanced Legal Studies. 1 I must thank Lord Justice Thomas, Mr Justice Breyer (USA), Mr Justice Van Zyl (SA), Malcolm Holmes, QC (Australia), Pathma Selvadurai (Singapore), Timothy Castle, (New Zealand), Dr Charles Parkinson (Australia), Joanna Innes (Fellow of Somerville), and John Baker, Chairman of the SSRB for their assistance in obtaining material for this lecture, delivered under the auspices of All Souls College in the Examination Schools at Oxford University on the 27th January 2006. 2 1997 AC 168. 1 THE DENNING LAW JOURNAL and approved by this University for the degree of doctor of philosophy in the field of public international law. Our report determined that the charge was, alas, made out; but Pat’s successor prevailed upon us not to give wide currency to our conclusion since it showed that the system was as potentially vulnerable to fraud as are postal ballots at municipal elections, and opened up vistas of headlines in the Mail on Sunday “The dumbing down of the doctorate”. Finally I followed Pat in what is now becoming the Oxford ‘head of house’ slot in the Appellate Courts of Jersey and Guernsey, if a sequence of two can create a precedent, in the same way as certain places have become reserved to members of particular ethnic groups or genders on the Supreme Court of the United States of America, a tribunal which enjoys a somewhat more extensive jurisdiction. I should add, before warming to my theme, that I understand that in recognition of Pat’s abilities as a pianist, this lecture takes place only on alternate years, the intervening ones being the occasion for a concert. I make no great – or indeed any – claims to the merits of my address, but I can say with a supreme measure of confidence that it will at any rate be better than my performance on the piano. It is axiomatic, so Halsbury recites, that “the independence of the judiciary is essential to the rule of law and to the continuance of its own authority and legitimacy.”3 Some of the mechanisms to ensure this are historic, for example security of tenure: others more modern i.e. prospective appointments by a Judicial Appointments Commission. The principle that judicial salaries may be increased by administrative action, but may not be reduced except, presumably, by Act of Parliament4 has its origins in the Act of Settlement 1701 and has been linked with immunity from removal as one of the guarantors of such independence.5 In a decision last year in the sensitive area of immigration control R (on the application of G) v Immigration Appeal Tribunal, Lord Phillips of Worth Matravers, then Master of the Rolls, and now Lord Chief Justice, said expressly: 3 Halsbury’s Laws 4th edn Reissue, Vol 8(2) para 303. 4 Supreme Court Act 1981, s 12(3); Administration of Justice Act 1973, s 9(1)(3); Halsbury’s Statutes, Vol 11 1057; Courts Act 1971, s 18(2) Halsbury’s Statutes, Vol 11, 968; County Courts Act 1984, s 6(1); Halsbury’s Statutes, Vol 11, 708. 5 See also Woodhouse The Office of Lord Chancellor (Oxford: Hart, 2001) p 26; S Finer, V Bogdanor, B Rudden Comparing Constitutions (Oxford: Clarendon Press, 1995) p 89. Viscount Birkenhead, “Judges and Politics” in Points of View Vol II (London: Hodder and Stoughton, 1922) pp 161-2. 2 THE DENNING LAW JOURNAL “It is the role of the judges to preserve the rule of law. The importance of that role has long been recognised by the Parliament. It is a constitutional norm recognised by statutory provisions that protect the independence of the judiciary such as Sections 11 and 12 of the Supreme Court of 1981.”6 which are the recent descendants of the Act of Settlement. The same norm is now enshrined in the Constitutional Reform Act 2005 s 34(4). A more sonorous reference to the original statute featured in a speech by one of Lord Phillip’s predecessors on a less formal occasion – a provincial Law Society Dinner in Hastings in 1935, when Lord Hewart said: “It might be useful sometimes to remind persons who have forgotten, or who never knew, that there is still in existence an instrument called the Act of Settlement, and that the independence of judges is the protection of the people.”7 That speech incidentally forms part of a collection of ephemera by that less than radical figure entitled “Not Without Prejudice” – an all but unrivalled example of lawyerly meiosis. The principle that judges’ pay should not be diminished while they hold office is reflected in the constitutions and laws of many jurisdictions, not all of which are based on the common law, such as Brazil,8 Egypt9 and Japan10 as well as in common law based jurisdictions, such as the USA,11 6 [2005] 2 All ER 165 at 173, para 12. 7 Lord Hewart “Her Majesty’s Judges” in Not Without Prejudice (London: Hutchinson, 1937) p 240. 8 The Constitution of the Federation of the Republic of Brazil 1988 provides at Article 95, III: “Judges enjoy the following guarantees … III irreducibility of earnings.” On salaries see Professor Celso Agricola Barbi in Professor Shetreet and Jules Deschênes “Judicial Independence: The Contemporary Debate”: (Leiden: Martinus Nijhoff Publishers, 1985) (“SD”) Ch 6 at p 53, and generally M G Ferreira Filho “Fundamental Aspects of the 1988 Constitution” in J Dolinger and K Rosenn (eds) A Panorama of Brazilian Law (University of Miami, 1992). 9 The independence of the judiciary is constitutionally guaranteed, including special rates as to salary in The Constitution 1971 (Amended 1980): see chapter 12 at p 198 and 323 “Egypt and its Laws” in N Bernad-Maugison and B Dupret (eds) (Kluwer Law International, 2002). 10 The Constitution provides at Art 80 para 12: “The judges ... shall receive adequate compensation which shall not be decreased during their term of office.” 11 The US Constitution provides at Art III.I that all judges shall “at stated times receive for their services a compensation which shall not be diminished during their continuance in office.” 3 THE DENNING LAW JOURNAL Bangladesh,12 India,13 Australia,14 Canada,15 Ghana,16 Ireland,17 New Zealand,18 Malta19 and Singapore20 - indeed generally throughout the new Commonwealth where constitutions retained their original Westminster hallmark.21 However, the principle is not universal. In Finland there is no law to that effect; an academic commentator noted: “There are no regulations against decreasing salaries” adding somewhat primly, “but it is out of the question and no one has, perhaps, even thought about it” – and more primly still, “a 12 The Constitution of Bangladesh provides under Article 147 that there shall be no diminution in salary during term of office, see “Bangladesh Constitution Trends and Issues.”Justice Mustafa Kamal, Dhaka UP p 32. cf: Mubaleb: “Bangladesh” Ch 4: SD p 40. 13 The Constitution of India (1949) provides at Article 125: (1) There shall be paid to the Judges of the Supreme Court such salaries as may be determined by Parliament by law ... (2) ... Provided that neither the privileges nor the allowance of a Judge nor his right in respect of ... pension should be varied to this disadvantage after his appointment. See generally H K Sahoray The Constitution of India: An Analytical Appraisal (Eastern Law House, 2nd ed, 1997) pp 353-4, citing analogies from elsewhere. 14 Commonwealth of Australia Constitution Act 1900 s 72(ii) provides that the Justices of the High Court created by Parliament “shall receive such remuneration as Parliament may fix: but the remuneration shall not be diminished during their continuance in office.” 15 British North America Act 1807 s 100.
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