Scotland is facing a judicial recruitment crisis

Lord Carloway

Our enquiries among leading QCs found that most had no appetite to become judges citing hostile media coverage, lack of respect for the judiciary, relatively modest pay and pension packages, a backlog of distressing child sex abuse cases and concerns over judicial independence as well as the isolation and strenuous work load.

The Lord President, Lord Carloway, is known to be concerned about the situation and anecdotal evidence largely chimes with our findings.

Many advocates and solicitor-advocates have no intention of applying to become Senators of the College of Justice – confirming the Lord President’s concerns regarding recruitment.

A career on the bench, once considered a natural progression for an experienced QC and the pinnacle of a successful legal career, is no longer necessarily an attractive proposition for the most able members of the Scottish bar.

The appointment process is one factor that puts off prospective applicants and the workload of a High Court judge, which includes presiding over an increasing number of historic child sex abuse cases, can also be distressing.

The isolation, the lack of flexibility and control over working time and the resulting impact on a judge’s personal life, also weigh heavily against counsel applying for judicial office.

Pay and pensions are also a factor, particularly for senior counsel, who would require to accept a significant reduction in income in order to become a Senator. But this is not a new factor and many potential judges have already attained enough wealth to allow them to end their legal career on the bench.

A significant concern is the increasing media criticism of a personal nature directed at judges, as demonstrated by the Brexit case, to which the judiciary is unable to publicly respond.

A survey by the European Network of Councils for the Judiciary found that 60 per cent of judges in the UK do not feel respected by the media while 40 per cent feel disrespected by the government – the highest figures in Western Europe.

During his recent visit to Scotland, Lord Neuberger, the outgoing President of the Supreme Court, spoke of the intense media pressure on judges during the Brexit deliberations when judges were branded “Enemies of the People” for doing their job – and were not defended by the then Lord Chancellor, who ignored her constitutional obligations.

In Scotland, populist politicians have launched intemperate attacks on the Supreme Court and Alex Salmond’s description of sheriffs as “rugby-playing toffs” was greeted with widespread dismay in legal circles.

In his recent valedictory address to the Supreme Court, Lord Neuberger warned that it would be a “serious error” to take the high quality of the judiciary for granted.

He said: “The high quality and proper authority of the judiciary, and therefore the rule of law, is at risk if ministers and parliamentarians do not provide us with appropriate support in the form of both words and means.”

Lord Neuberger added that “misconceived attacks on judges undermine both the rule of law domestically and the international reputation of the legal system, with its consequential financial benefits to the country”.

One senior QC told Scottish Legal News: “When it comes to judicial recruitment in Scotland we seem to be in the eye of a perfect storm and there is concern about how we maintain the quality of our judges.

“There is no real prospect of enhanced pay and pensions, which, in any event would be insufficient compensation to make up for the arduous workload and the intense and frequently hostile media coverage to which judges are subjected. It is hard to see how the best candidates can be attracted to become judges – it would feel a bit like putting one’s head in a noose.”

A spokesperson for the Judicial Office for Scotland said: “The Lord President, as head of the Scottish judiciary, has a duty to make and maintain arrangements to secure the efficient disposal of business in the Scottish courts.

“In that regard, it is important that the Lord President is aware of any barriers, real or perceived, which may be preventing suitably qualified and experienced applicants applying for judicial office.

“The Lord President will continue to work with the Judicial Appointments Board for Scotland to ensure that the recruitment process attracts the best possible candidates.”