PAYING JUDGES: WHY, WHO, WHOM, HOW MUCH


THE DENNING LAW JOURNAL 

1 

                                                

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.  



THE DENNING LAW JOURNAL 

2 

                                                

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. 



THE DENNING LAW JOURNAL 

3 

                                                

“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.” 



THE DENNING LAW JOURNAL 

4 

                                                

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.  The position that salaries be “fixed and 
provided for” by Parliament “protects the judiciary from executive power to impair 
judicial independence by reductions or raises of salary”: see Hogg Constitutional Law 
of Canada (Carswell, 4th edn, 1997) p 172.  See also W R Lederman “The 
Independence of the Judiciary” 1956 Canadian Bar Review XXXIV 1139 at 1163-
1166 (“Lederman”). 
16 Constitution of Ghana 1960 Art 46: “No judge may suffer a diminution in salary 
while he remains in office.” Bennion The Constitutional Law of Ghana (London: 
Butterworths, 1962). See also Enwah E Kom “Ghana”  SD chapter 9 p 76. 
17 In Ireland, Article 35.5 of the Constitution has been held to require that judges 
should receive salaries and pension benefits which are appropriate “otherwise the 
independence of judges will be undermined.”  (McMenamin v Ireland 1994 in the 
Law Reports Monthly vol 2 p 368 per Geoghan J at p 377). 
18 Constitution Act 1986 Part IV Section 24: “The salary of a High Court Judge is not 
to be reduced during the continuance of the commission of the Judge.” 
19 The Constitution of Malta provides that salaries of judges “shall not be reduced”, 
article 110(3): see J M Ganado “Malta” SD chapter 20 p 237. 
20 The Constitution of the Republic of Singapore 1996 s 98(8): “The remuneration and 
other terms of office  (including pension rights) of a Judge of the Supreme Court shall 
not be altered to his disadvantage after his appointment.” 
21 S A de Smith The New Commonwealth and its Constitutions (Stevens, 1964) p 139. 



THE DENNING LAW JOURNAL 

5 

                                                

judicial proceeding is not the way to solve problems relating to salaries.”22  
Norway,23 Italy,24 Portugal,25 Spain,26 Uganda,27 Uruguay,28 France29 and 
Greece30 supply other examples of the principle’s exclusion.   In Israel the 
Basic Law:31 provides that a reduction in judicial salaries may be made only if 
it does not apply solely to such salaries in the public sector.32  In Germany the 
Basic Law33 stipulates that, in the extraordinary event of changes in the 
structure of Courts, judges may be transferred or removed “provided they 
retain their full salary”, but in ordinary circumstances judges’ salaries are 
linked to the annual rate of inflation in the same way as the pay of other civil 
servants.     

In Russia too there is no such guarantee.34  China is another notable 
exception.35  A standard commentary refers to “the relatively low social and 

 
22 Prof Irma Lager “Finland” SD chapter 7 p 58. 
23 Prof Haakon L Haraldson “Norway” SD chapter 23 p 270.  
24 Prof A Pizzorusso “Italy” SD chapter 17 p 199: “There is a fixed system of 
indexation of judicial salaries.  There is no express provision prohibiting decreases in 
judicial salaries but such an occurrence is virtually unthinkable.” 
25 Alexander M Pessoa Vaz “Portugal” SD chapter 24  p 280. 
26 Prof A Beltran Pelayo “Spain” SD chapter 26 p 320: “There is no constitutional 
provision concerned with judicial salaries.” 
27 Joseph M N Kakooza “Uganda” SD chapter 28 p 248: “There is no constitutional 
provisional against decreasing judicial salaries, although it is suggested that it is 
implicit in arrangements for their payment out of the consolidated fund that they 
should not be.” 
28 Prof E Vescovi: “Uruguay” SD chapter 30 p 377. 
29 E Grivart de Kerstrat: “France” SD chapter 8  pp 65-6.  In France judicial salaries 
are determined by central administration according to seniority and rank.  Hence “a 
reduction in salaries may be obtained only through judicial proceedings” p 66. 
30 Professor D Kerameus “Greece” SD chapter 13 pp 131-2. In Greece, Art 83.II of 
the Constitution provides “The remuneration of judicial functionaries shall be 
commensurate with their office.  Matters concerning their rank, remuneration and 
general status shall be regulated by special laws.”  This has not availed judges in their 
claims for higher salaries. 
31 Adjudication S11 No 1110 (A&Y). 
32 Shimon Shetreet Justice in Israel: A Study of the Israeli Judiciary (Leiden: 
Martinus Nijhoff Publishers, 1994)  (“Shetreet: Israel”) p 160. 
33 Article 97(2) on the Independence of Judges.  
34 The Constitution of Russia says the following only in Art 124: “The financing of 
the courts shall be effected solely from the federal budget and must ensure the 
possibility of the full and independent administration of justice in accordance with 
federal law.” 
35 J Minen Laws in the People’s Republic of China (Leiden: Martinus Nijhoff, 1982). 
The PRC Constitution: Section VIII says nothing about salary although Article 126 



THE DENNING LAW JOURNAL 

6 

                                                                                                                    

bureaucratic status and pay of the PRC Judges.”36  Ominously Article 93 of 
the Basic Law of the Hong Kong SAR confirms only the irreducibility of 
present pay and allowances for judges who served at the time of the handback.  
No similar provision is made for subsequent appointees.  It has been bleakly 
observed: 

 
“There is no guarantee that salaries or other benefits of 
subsequent appointees would not be reduced).”37

 
In other countries the principle, once applicable, has been abandoned.  In 

Sweden the constitution was modified in 1966 to allow for such reduction:38 
likewise in Belgium in 1980.39  In the Netherlands indeed, where law also 
fixes the salaries of judges, it is expressly provided that “the legislature can 
reduce judicial salaries”.40

Nor is this altogether surprising.  The common ground identified in 
international instruments, such as the IBA Code of Minimum Standards of 
Judicial Independence, is that judges salaries can be reduced only as part of an 
overall economic package, not that they cannot be reduced at all.41  So 
whereas, in England, we consider the principle of the protection of judicial 
salaries to be a necessary but not, of course, a sufficient guarantee of judicial 
independence, in the wider world it is not always seen as necessary. 

I wish to explore the prehistory of the domestic principle, its development 
from the Act of Settlement onwards, its rationale, and the contemporary issues 
surrounding judicial pay in this country. 

The inspiration for any form of judicial payment was rooted in the 
consideration that judges who were not paid could be bought.  Wilfred Prest 

 
states that: “The people’s court shall, in accordance with the law, exercise judicial 
power independently.”  
36 Ibid, at p 97. 
37 Yash Ghai Hong Kong’s New Constitutional Order (Hong Kong University Press, 
1992) p 293.  
38 Judge Andres Andersson “Sweden” SD chapter 27 p 341. 
39 Professor Storme “Belgium” SD chapter 5 p 43. 
40 BJ Van Heyst “The Netherlands” SD chapter 21 p 240. 
41 IBA Code of Minimum Standards of Judicial Independence (1982) Article 15(a): 
“The position of judges, their independence, their security, and their adequate 
remuneration shall be secured by law.” See also s 15(b): “Judicial salaries cannot be 
decreased during the judges except as a coherent part of an overall public economic 
measure” Please also note that to like effect is the Montreal Universal Declaration on 
the Independence of Justices: article 2.21 (c). 



THE DENNING LAW JOURNAL 

7 

                                                

has written “The spectre of judicial corruption haunted the west from classical 
times onwards.”42   

Corruption was certainly a problem in England during the reign of Henry 
III when, in Holdsworth’s words, all royal officials, judges included, were 
“both poorly and irregularly paid.”43 The short lived Provisions of Oxford in 
1258 were introduced to ensure that the Chief Justiciary: 

 
“Takes nothing unless it be presents of bread and wine, and 
such things, to wit food and drink, as have been used to be 
brought to the tables of great men.” 44
 

The oath administered to newly appointed justices of the Courts of King 
Bench, Exchequer and Common Pleas from 1344 onwards included an 
undertaking to abstain from receipt of gifts “except meat and drink and that of 
small value” at the same time a promise to “do equal law and execution of 
right to all … rich or poor,”45 whose value, if not vocabulary, has persisted 
into modern times. 

The history of Judges pay prior to the Act of Settlement has been 
recounted, amongst other places, with characteristic detail and humour – as 
befits a Trinity graduate - in an article by Theobald Mathew,46 who identified 
as his chief source of information Sir William Dugdale’s Origines 
Juridiciales.  The records begin in the XIth year of Henry III when William 
Insula and R, Ducket, Kings Justices received “X (ten) marks” (a mark being 
13 shillings and 4 pence if I may cross-refer to another obsolete currency) 
each out of the Exchequer.47  The trend was generally upward although there 
was shrinkage in the reign of Edward III in the salary of the Chief Justice of 
the Kings Bench Division.48

In the reign of Henry VI Judges were required to pay taxes on their 
income for the first time: Mathew comments  “This novel and disagreeable 
demand was probably the explanation of the subsequent raising of judicial 
salaries.”49  During the reign of Elizabeth I, The Lord Chief Justice in 

 
42 Wilfrid Prest “Judicial Corruption in Early Modern England” Past and Present No 
133, 62. 
43 Holdsworth History of English Law Vol II pp 294-295. 
44  Prest p 71. 
45  Ibid. 
46 Mathew For Lawyers and Others (Hodge, 1937), chapter entitled “Judicial 
Salaries” pp 71-87. 
47   Ibid p 71.  
48   Ibid p 72. 
49   Ibid p 73. 



THE DENNING LAW JOURNAL 

8 

                                                

England was paid for Reward and Robes £208.68, Wyne: 2 tonnes at £5 per 
tonne: £10.00, allowance for being justice of assise: £20.00.50

The assessment of the judges for taxation purposes in the reign of Henry 
VIII shows however that they had sources of income apart from official pay: 
presents, fees, perquisites51 under a system “in full swing” as Mathew puts it 
“during the sixteenth century.”52  The right to sell legal office, or to bestow it 
on some penurious relation was prime among them.   

The Lord Chancellor up to time of Lord Eldon in the nineteenth century 
had a surfeit of sinecures to bestow.  Mathew dwells with palpable relish on 
the exotic nature of these creatures inhabiting the undergrowth of the law in a 
kind of legal bestiary: the Keeper of Her Majesty’s Hanaper, the Clerk of the 
Custodies of Lunatics and Idiots, the Prothonotary of the Court of Chancery, 
Chaffwax, whose duty it was to bring the wax to the proper state of 
liquefaction when the Government Seal was in use.  As Mathew comments 
wryly: 

 
“These posts were alike in two respects – the emoluments 
were large and the duties could be performed by a deputy.”53
 

The offices in the gift of the Chief Justices were fewer, but by no 
means insignificant.54

But even these benefits were perceived as insufficient to make bribes 
otiose and in sixteenth and early seventeenth century the satire directed at the 
judiciary increased.55  In the middle of the 16th century bishop Hugh Latimer 
had inveighed against judicial bribe taking.56  Curiously, the reputation of 
Chancery judges was inferior to that of their common law counterparts, as 
they sat solo and without juries and did not take the common law oath.57   

As Prest puts it “By the reign of James I the inflation - stricken salaries 
for judges in the three ancient common law courts hardly provided a 
significant deterrent to impropriety.”58  Bacon’s fall from office as Lord 
Chancellor in 1621 for accepting gifts from litigants is not the only, if it is the 
best-known, example of judicial corruption.  In 1641 the charges on which 
Lord Keeper Finch was impeached included two for such corruption, which 

 
50   Ibid p 74. 
51   Ibid p 74. 
52   Ibid p 74. 
53   Ibid p 75. 
54   Ibid pp 76-78. 
55   Prest p 74. 
56   Prest p 79. 
57   Prest pp 79-81. 
58   Prest p 77. 



THE DENNING LAW JOURNAL 

9 

                                                

dated back to the time when he was Chief Justice of the Court of Common 
Pleas.59  

In the same year, 1641, The House of Commons ordered John Pym to 
include in the Grand Remonstrance a clause attacking the buying and selling 
of judicial office as “being among the causes and remedies of the evils of this 
kingdom”.  The remedy for judicial corruption was perceived to be adequate 
pay for judges out of public revenue openly declared.60   

In September 1645 a massive 500% increase from under £200 to the 
£1,000 pa in the salaries of the common law judges was effected by 
Resolution of the House of Commons.  In present day values the uplift was 
from approximately £23,000 to approximately £116,000.61 Prest suggests that 
the increase in financial provision after 1645 was of  “prime importance” in 
improving judicial integrity.62  

But the restraint on judges supplementing their salaries with fees was 
expressly abandoned in January 1660, even before the Restoration, “The 
important if unforeseen result” adds Prest, “was that post 1660 judicial 
income did not fall quite so far behind those of leading counsel as they might 
otherwise have done.”63  However, payments remained at the same level until 
the Judges’ next pay rise in the next century.   

The day after the House of Commons resolved that James II had 
abdicated in 1688, the Parliamentary Committee drew up its agreement to be 
presented to a new king, which contained provisions for security of tenure and 
for payment of judges’ salaries out of the public revenue only.  These 
provisions, however, did not appear in the Bill of Rights 1688.64  And in 1693 
in Bridgman v Holt three puisne judges of the Court of Kings’ Bench, faithful 
to the old ways, upheld the right of their Chief Justice to the very valuable 
sinecure office of Chief Clerk of the Kings’ Bench.65  

But in 1701 the Act of Settlement, as I have already indicated, gave 
judges secure tenure and secure pay.  It provided: 

 

 
59  Brooke LJ “Judicial independence – Its history in England and Wales” p 7. Lecture 
www.judiciary.gov.uk 
60  Ibid. 
61 Prest p 83. 
62 The Conversion throughout using the Retailers Index is based on website 
http:/eh.nat/limit/power. I have rounded the precise figures up or down to the nearest 
thousand pounds. 
63 Prest p 83. 
64 Brooke p 6. 
65 Brooke p 9; Bridgman v Holt (1693) Shower P C 111. 



THE DENNING LAW JOURNAL 

10 

                                                

“Judges commission to be made quam diu se bene gesserit 
and their salaries ascertained and established.”66  

 
Then interpreted to mean that judicial salaries should be fixed by 

Parliament and not left to the discretion of the executive.67   
GN Clark notes in his volume in the Oxford History of England: 

 
“It should be simply regarded as the formal termination of 
that control of judges by the executive which had died with 
the Stuart system.  It removed the possibility of a new attempt 
to subject judges to Royal control: judicial independence has 
been a central fact of the constitution from the fall of James 
II.” 68
 

Nonetheless in the early 18th Century judicial salaries still frequently ran 
up to 3 terms in arrears69 and while increasingly stringent ethical sensibilities 
percolated among the common law judiciary from 1650 onwards, the 
practices of judicial favouritism, receipt of fees and sale of legal offices 
persisted long after.70   

Lord Chancellor Macclesfield increased the honorarium charged by his 
predecessor for the sale of the Chancery Masterships by so much that the 
newly appointed Masters felt obliged to recoup the premiums they had had to 
pay from the litigants who appeared before them.  In 1724 the same Lord 
Chancellor was duly impeached, convicted and fined £30,000.71   

At the end of the seventeenth century the salaries of the puisne judges 
were £1,000 per year (approximately £118,000 in present day values) 
complemented by an equivalent amount of fees.  Although the salaries were 
increased in 1714, 1760, - described as “noble improvements” by no less a 

 
66 Costin and Watson The Law and Working of the Constitution Vol I 1660-1783 (A C 
Black, 1952) p 92-96.  “The Act is part of written constitutional law” in Barendt An 
Introduction to Constitutional Law (Oxford: OUP, 1995). 
67 Bradley and Ewing Constitutional and Administrative Law (London: Longman, 
13th edn, 2003) p 371. They are nowadays charged on the Consolidated Fund as 
among those payments which “for constitutional reasons are considered inappropriate 
for annual authorisations by Parliament” (p 35).  
68  Clark The Later Stuarts (Oxford: Clarendon Press, 1934) p 184. 
69  Prest p 87. 
70  Prest p 92. See also Holdsworth “The Constitutional Position of the Judges” (1936) 
48 LQR 25, at 33. 
71 See From Office Holding to Civil Service: The Genesis of Modern Bureaucracy by 
G E Aylmer TRHS 198. 



THE DENNING LAW JOURNAL 

11 

                                                

figure than Blackstone72 - 1779, 1799 and 1809,73 while the value of money 
diminished, the problems of extra-curricular remuneration remained.74   

Two further developments were noteworthy.  First the rule was 
established that, unless Parliament had provided (or promised) a salary no 
judicial vacancy could be filled.75  Secondly, judicial salaries were charged to 
the consolidated Fund, created in 1767,76 so further protecting judges against 
the vagaries of politicians. 

In 1815 puisne judges were paid £240077 (approximately £135,000 in 
present day values), but still drew much of their income from fees78 - 
something that, according to the former Chief Justice of Australia, Sir 
Anthony Mason in a throw away line in a judgment concerned with cycling 
selection procedures for the Sydney Olympic Games, explained the 
longstanding judicial opposition to arbitration. 

 
“As formally the emoluments of Judges depended mainly or 
almost entirely upon fees, and they had no fixed salary there 
was great competition to get as much litigation as possible 
into Westminster Hall for the division of the spoils.  
Therefore they saw that the Courts ought not to be ousted 
from their jurisdiction and that it was contrary to the policy of 
the old law.” 79
 

In 1826 two Chiefs lost the whole of their patronage and fixed, enhanced 
compensatory, but above all tax-free salaries replaced old method of 
remuneration,80 with a range from the Chief Justice of Kings Bench at 
£10,000 per annum through to Judges and Barons £5,50081 - an enviable 
£346,000 in present day values - notwithstanding the opposition from some, 
on one flank, who regarded the power to dispose of offices as a necessary 

 
72  Blackstone Commentaries on the Law of England pp 267-8. 
73 “The high costs of living brought about by the war was the ground put forward for 
the passing of this statute: and the fact that Judges were now subject to a heavy 
income tax (10%), as well as a land tax was an additional reason for improving their 
financial positions”: Mathew p 80. 
74 Brooke pp 9-10, Holdsworth History of English Law Vol I pp 253-255. 
75 See Buckley v Edwards 1892 AC 387, at pp 392-393 (a case from New Zealand). 
76 Lederman  p 769, pp 792-793.  
77 Holdsworth LQR p 33. 
78 Prest p 87. 
79 Raguz v Sulhivan (2000) 50 NSWR 236, at para 47. 
80 Mathew p 81; Holdsworth LQR p 33. 
81 Mathew pp 82-83. 



THE DENNING LAW JOURNAL 

12 

                                                

prerogative of a Chief Justice, and on the other the radical Brougham, but for 
whose oratory the basic figure would have been  £6,000.  

This tax free annual salary was trimmed to £5,000 – still no pittance at 
£338,000 in present day values - in 1832,82 the same year in which the Lord 
Chancellor lost his sinecures83 - but not, for reasons of constitutional 
propriety, of those already appointed at the higher salary.  It remained at that 
level (astonishingly) for over 100 years.  

In 1851 by the Court of Chancery Act the salary of the Master of the Rolls 
was fixed at £6,000: and those of two new Judges of the Court of Appeal in 
Chancery at the same sum, but when in 1873 the number of Lord Justices was 
increased to 5 the salary was lowered to £5,000.84  The Judges, consulted on 
whether the newly titled Lords Justices should be distinguished from mere 
Puisnes by a further £500 per annum or by a Privy Councillorship, preferred 
glory over gold.85

Gladstone’s efforts to cut judicial salaries in his first Administration was 
resisted by the judges who refused to discuss the forthcoming Judicature Bill 
while such a threat existed, Chief Justice Bovill of Common Pleas arguing 
that: 

 
“since judges salaries were fixed, everything especially house 
rents, servants and horses have become much more 
expensive.”86
 

Their salaries were, however, confirmed to be subjected to income tax in 
Judicature Act 1873 following on the Income Tax Act 1842.  The Privy 
Council later opined in a Canadian case in 1937 – with what suppressed 
reluctance I can only speculate – 

 
“Neither the independence nor any other attribute of the 
judiciary can be affected by a general income tax which 
charges their official incomes on the same footing as the 
incomes of other citizens.”87
 

It is arguable that during 19th Century the real value of the High Court 
Judges salary did not decline, but it is indisputable that there was a dramatic 
increase of 250% in the cost of living between 1900-1920 so that, when tax 

 
82 Mathew p 84, Holdsworth LQR p 33. 
83 Mathew  p 84. 
84 Mathew p 87. 
85 Mathew p 87. 
86 Robert Stevens The English Judge (Oxford: Hart, 2002) p 81. 
87 The Judges XG of Saskatchewan (1937) 58 LTR 464, at 466.  



THE DENNING LAW JOURNAL 

13 

                                                

was taken into account, judges, in the view of that most sapient and learned 
diagnostician of the judicial condition, the former Master of Pembroke, 
Robert Stevens “really were suffering serious diminution in status.”88

Lord Birkenhead, Lord Chancellor from 1920-1922, himself a notorious 
over-spender,89 was sympathetic to High Court Judges; but the Governments 
of which he was a member were not persuaded to favour increases since the 
average earnings of QC’s in 1920-21 were £6,814 whereas judges had not 
only their £5,000 pa but also an attractive non contributory pension, a 
knighthood and concomitant prestige.90  The 1920’s were indeed a time when 
High Court Judges did not question their salaries or pension since the cost of 
living was dropping and the Bar’s prosperity was at best erratic.91

But the Great Crash at the turn of the next decade reverberated inside, as 
it did outside, the Courts. The National Economy Act 1931 authorised Crown 
by Order in Council to make economies in remuneration of persons in the 
service of the Crown and it reduced by 20% salaries of Judges which had 
been, I repeat, been static at £5,000 pa since 1832 and were worth in present 
day values £220,000.  By that time the only Judges who received more than 
£5000 (less income tax) were the Lord Chief Justice (£8,000) the Master of 
the Rolls (£6,000) and the six Lords of Appeal (£6,000). 

Mathew commented sadly: 
 
“It is melancholy to realise that the Judges, with a salary of 
£5,000 diminished by 20% and the deductions of tax and 
surtax were worse off than they were in 1799 when they had 
£3,000 pa “free and clear of all taxes and deductions 
whatever.”92  
 

A deputation of Judges complained to Lord Chancellor Sankey who in 
consequence addressed the Cabinet with the following plea: 

 
“I must point out that their (i.e. the Judges) prestige will be 
lowered.  They will be addressed in Court by leaders of the 

 
88 Robert Stevens The Independence of the Judiciary (Oxford: Clarendon Press, 1993) 
pp 44-47; on County Court Salaries 1878-1937, p 507. See the classic biography by 
John Campbell FE Smith: First Earl of Birkenhead (London: Jonathan Cape, 1983). 
89 First Earl of Birkenhead, ibid. 
90 Stevens: Independence p 51. 
91 Ibid p 52. 
92 Mathew p 87.  Mathew’s figures are discrepant with those of Holdsworth: see 
Holdsworth LQR p 33. 



THE DENNING LAW JOURNAL 

14 

                                                

Bar who sometimes make it 2 or 3 days as much as a judge 
makes in a year.”93  
 

Plus ca change! 
There were threats of resignation, and representations which ranged from 

the dignified to the extreme such as those of Mr Justice McCardie who spoke 
of “pecuniary sacrifice to which there is no parallel in the world”; of Mr 
Justice McNaughten who said that “the judges were now in the power of civil 
servants and he considered his position was no better than that of an office 
boy” adding as a final thrust “at the Home Office” and of Mr Justice 
Maugham who complained that the Judges had been treated “as if they were 
policemen or postmen,”94   With few exceptions, the vehemence with which 
judges expressed their views was in inverse proportion to their judicial 
reputation. 

There was talk of a Petition of Right, raising the interesting issue of the 
reach of the principle Nemo judex in causa sua.  The Government had a 
defensive bill drawn up by George Schuster, the Lord Chancellor’s Permanent 
Secretary who wrote to the Parliamentary draftsmen with the cunning of a 
Machiavelli, even of a Mandelson,  

 
“begin with a recital which should be as long and pompous as 
possible, asserting the independence and all the rest of it, 
negating any idea that the Economy Act or Order by Council 
affected that in any way ... then declare that notwithstanding 
all this they are affected by the cut.” 95
 

Academics entered the fray.  Sir William Holdsworth proposed that 
judges’ salaries be made tax-free but ventured, additionally, the observation 
that on its true construction, the National Economy Act did not apply to 
Judges at all who were not “persons in his Majesty’s Service.”96  Professor 
Sir William Wade QC has since expressed a contrary view97 shared by his no 
less eminent namesake Professor E S C Wade.  In that clash of the titans I 
prefer the views of the junior Sir William.98  Service takes many forms.  Its 

 
93 Stevens: Independence  pp 52-63.  Charles Mowat Britain Between the Wars 
(London: Methuen, 1955) pp 402-406. 
94 Stevens: Independence pp 54-56. 
95 Stevens: Judge p 24. 
96 Holdsworth pp 25-36. 
97 Stevens: Independence pp 61-2.  
98 Wade and Forsyth Administrative Law (Oxford: OUP, 9th edn, 2004)  (“Wade”) pp 
67-9.  Supported by Professor E S C Wade 173 Law Times 246 and 267 Reply by 
Holdsworth p 336.  



THE DENNING LAW JOURNAL 

15 

                                                

meaning in public law differs from that in private law.  And to suppose that 
the Wade analysis threatens their independence is truly to elevate form above 
substance.   

In the end the Judges did not strike - strikes are left to the modern 
Criminal Bar - and in 1934 the Judges’ salaries were quickly restored.99  
Schuster’s biographers have written “Looking back on this convoluted 
conflict as a piece of legal history, it is clear that Judges who protested were 
concerned about money rather than constitutional principle.”100

I should add that the Invergordon Mutiny in 1931 resulted in a 
Government commitment that no salary reductions for servicemen, police or 
teachers would exceed 10%, proving, if nothing else, that politicians were – 
and doubtless still are - more fearful of revolt among the British navy than 
among the British judiciary.101

In the post-world war II years under both Labour and Conservative 
administrations, issues about the scale of judicial salaries continued to surface, 
but the time for an increase never seemed ripe: egalitarianism and economics 
both militated against it.  Not until 1954 was there an uplift from £5,000 to 
£8,000, about £143,000 in present day values.  Lord Maugham, the ex Lord 
Chancellor as the former Mr Justice Maugham had by now become, was as 
querulous in the fifties as he had been in the thirties, suggesting that for a 
Judge on the net salary “it is impossible to support a wife and children with 
dignity and to send his sons to public school” – an observation whose 
unspoken premises could justify a thesis in itself.   

By 1960 the cost of living had risen 400% since 1913/14, High Court 
salaries by only 60%, and the rate of tax had grow’d like Topsy.102  In real 
terms judges’ salaries had peaked more than a century and a half earlier, and 
were on an accelerating downward curve. 

To hasten this brief history to its conclusion, the Judicial Remuneration 
Act 1965 provided that Judges pay could be increased, but not reduced, by 
Order in Council with concurrence of both Houses of Parliament.   It also 
raised High Court Judges’ salaries to £10,000, £126,000 in present day values.  
The Administration of Justice Act 1973 authorised the Lord Chancellor acting 
with approval of the Prime Minister to increase judicial salaries in the light of 
(but not bound by) the recommendation of the Top Salaries Review Board 
(established in 1971) - to give the Review Body on Senior Salaries its original 
and strikingly politically incorrect appellation.   (I note, however, that similar 
sentiments have led the New Zealand equivalent, previously the Higher 

 
99 Stevens: Independence p 63. 
100 Jean Graham Hall and Douglas F Martin Yes Lord Chancellor, A Biography of 
Lord Schuster (Chichester: Barry Rose, 2003) pp 129-139. 
101 R Bassett The Invergordon Mutin 931 (London: MacMillan, 1955) pp 234-236. y 1
102 Stevens: Independence chapter 2.

 



THE DENNING LAW JOURNAL 

16 

                                                

Salaries Commission, to be re-titled more neutrally the Remuneration 
Authority).103

As a by-product of this new regime, which had switched ultimate control 
from legislature to executive, in 1972 a High Court Judge salary became 
£15,570 (worth £134,000 in present day values).  

There were pleas in 2005 for further up lift of judicial salaries which had 
taken place over the intervening three decades more in fits and starts than in 
smooth curve and now for a High Court Judge amounted to £155,404.104  

 
103 The Remuneration Authority (Members of Parliament) Amendment Act 2002. 
104 Table: High Court Judges: 
       Year     Recommended Salary Increase      
 1972 £15,750   
 1973 £16,000  (1.6%) 
 1974 £16,350  (2.2%) 
 1975 £21,000  (28.4%) 
 1976 
 1977 
 1978 £26,000  (23.8%) 
 1979 £28,500  (9.6%) 
 1980 £35,000  (22.8%) 
 1981 
 1982 £45,000  (28.6%) 
 1983 £48,000  (6.7%) 
 1984 £51,250  (6.8%) 
 1985 £60,000  (17.1%) 
 1986 £63,500  (5.8%) 
 1987 £65,000  (2.4%) 
 1988 £68,500  (5.4%) 
 1989 £72,000  (5.1%) 
 1990 £77,000  (6.9%) 
 1991 £84,250  (9.4%) 
 1992 £100,000 (18.7%) 
 1993 £90,148  (-9.9%)* 
 1994 £96,543  (7.1%) 
 1995 £100,511 2.5% (4.1%) 
 1996 £106,071 3.9% (5.5%) 
 1997 £113,770 (7.3%) 
 1998 £119,600 3.5% 
 1999 £123,787 3.5% 
 2000 £127,872 3.3% 
 2001 £132,603 3.7% 
 2002 £143,258 8.0% 
 2003 £147,198 2.75% 
 2004 £150,878 2.5% 
 2005 £155,404 3.0% 



THE DENNING LAW JOURNAL 

17 

                                                                                                                    

When it was realised that the Lord Chancellor would inevitably fail to 
persuade Parliament to enact a Judicial Pensions Bill designed to exempt 
judges from the legislation in force in April of this year which will impose a 
lifetime limit of £1.5 million on the tax relief allowed on pension benefits.  
The Judges asserted that since their pensions position was statutory, they 
were, in the words of Lord Woolf, the then Lord Chief Justice, “excluded 
from opportunities available to other professionals to take action to protect 
themselves against the new legislation”105 and that the forthcoming cap 
breached the legitimate expectation that they had entertained in accepting 
judicial appointment.  Moreover, the convention is that Judges cannot (unlike 
in some other countries) return to the Bar – although it is rumoured that an 
opinion obtained by a former Lord Chancellor can point to no legal 
foundation for it - so depriving them of the one post-judicial career for which 
they are most obviously suited.   

The Parliamentary arithmetic suggested that were such a bill, positively 
discriminatory in favour of the Judges, to be introduced, it would fail to attract 
sufficient support among Blairites, Cameroons, Lib Dems and certainly Old 
Labour and a quid pro quo of a 20% salary uplift, only obtained twice in the 
last 30 years could logically be anticipated, to engender similar objections.   It 
was reported that Judges were ready to take legal action and had instructed 
pension specialist counsel to advise.106  Some had even (it was rumoured) 
threatened to resign.107  The new concordat between executive and judiciary, 
brokered by Lord Woolf and Lord Falconer seemed fragile. 

 
 
*The salaries vary from the actual salaries in payment due to the staging of awards – 
either mid-year as in 1977 and 1988 or over a number of years, as in 2002.  The salary 
position between 1991 and 1993 followed the Government’s rejection of the SSRB’s 
recommendations in 1992 CM 2015 (July 1992) para 137.  The actual salaries paid 
were as follows: 
1 April 1991  £82,800 
1 December 1991  £84,250 
1 April 1992  £87,620 
1 April 1993  £90,148 
Source: SSRB Reports. Table provided to me through the good offices of Andrea 
Prophet, SSRB Secretariat. This contrasts incidentally with a Median pre appointment 
income = £166,200 (April 1991) and Mean pre appointment income = £227,300 
(April 1991). 
105 Interview with Frances Gibb in “Judges threaten to resign over pensions losses” 
The Times October 6th 2005. 
106  Francis Gibb The Times November 7th 2005, based on a story in The Lawyer. 
107  Frances Gibb “Judges Threaten to Resign over Pension losses” The Times  
October 6th  2005. 



THE DENNING LAW JOURNAL 

18 

                                                

And then on 15 December 2005 Lord Chancellor, donning the seasonal 
garb of Santa Claus, announced that he would spend an extra £9 million a 
year on judges’ pay and pensions108 in a complex package whose provisions, 
announced in Parliament and on the website without the usual illuminating 
concomitant explanatory statement or interview, were capable of being 
understood, save for the concept of a long service award for Judges nearing 
retirement, only by revenue specialists, as illustrated by the diverse 
descriptions of its elements in the serious press.109   This was government not 
too much by spin as by stealth, but as in 1931, so in 2005, by an act of 
political legerdemain, a constitutional  crisis was averted. 

But England is not the only country where controversy has erupted over 
judicial pay.  In Israel there have been several skirmishes.  During the 
mandate period the Courts Ordinance 1940 had authorised the High 
Commissioner to fix judicial salaries.  After the establishment of the State of 
Israel this power was transferred under The Law and Administration 
Ordinance to government as a whole.  The first Minister of Justice D P Rosen 
had promised that salaries of judges should equate to those of ministers, but 
salaries were low and: “The final insult came when one minister demanded 
that the judges salaries be made to 10 Lira less per month than that of the 
ministers in order to symbolise the executive’s superiority over the 
judiciary.”110 This proposal was defeated and in 1950 it was decided that 
judicial salaries were to be determined by the Knesset  (or Parliament) rather 
than the executive.111

Nonetheless, in 1978 Israeli judges were primed to go on collective 
vacation to protest over the linkage of their salaries, together with those all 
other government employees to the cost of living index.  It was somewhat 
imaginatively claimed on their behalf that this gesture evidenced their 
independence. Proceedings were commenced by a dissenting but bold 
lawyer112 to restrain the judges: an injunction was refused.  The President of 
the Supreme Court, to whom an approach was made, negotiated a solution.  

 
108 This honoured substantially if not completely  (i.e. by  primary legislation),  the 
assurance given by him to the judiciary and recorded in Review Body on Senior 
Salaries, Report No 59 27th Report. Chairman John Baker Cm 6451 para 4.11. 
Compare “Falconer sneaks out changes to Judges Pensions” The Daily Telegraph   
December 16th 2005 p 24 with the version in the Times of the same day. 
109  Shimon Shetreet Justice in Israel A Study of the Israeli Judiciary (Leiden: 
Martinus Nijhoff, 1994) (“Shetreet: Israel”). 
110  Shetreet: Israel p 72. 
111  Shetreet: Israel p 73. 
112 D Hooper v Judges of the Magistrates and District Courts – DC CA Tel Aviv 
582/78.  



THE DENNING LAW JOURNAL 

19 

                                                

Henceforth judges’ salaries were linked to the average wage rather than on the 
cost of living.113

But in 1985 emergency regulations were introduced to combat inflation 
and all wages in public sector including those of the Judges were frozen 
contrary to the provisions of the Basic Law Adjudication of 1984.  The 
dispute was resolved by awarding an increase to the judiciary of 20%, the rest 
of the public sector gained by contrast nothing.114  

In Canada during the Depression the same issue arose as in contemporary 
England.115  A Canadian constitutional lawyer has witheringly described the 
argument then advanced on the Judges behalf that even non-discriminatory 
reductions affected judicial independence as “fantastic”.116

Half a century later in the same Dominion a contributory pension scheme 
was introduced for federally appointed judges and applied retroactively to 
judges who were appointed on the day the bill was introduced.  In Beauregard 
v Canada117 in 1986 a challenge to the legislation failed.  While it was 
recognised that it is a condition of judicial independence that a judge’s right to 
salary or pension should not be subject to arbitrary interference by the 
executive, only laws which were indeed “arbitrary”, “colourable” or 
“discriminatory” would be vulnerable to attack.  And in Re Public Sector Pay 
Reduction Act118 in 1996, it was held that there was no threat to judicial 
independence when provincial judges salaries shared in a pay cut in common 
with other public officials. 

In Ireland a novel point was taken in O’Bryne v Minister of Finance when 
the widow of a deceased judge claimed that taxation payments deducted from 
his salary while he was in office were breaches of the conventional 
constitutional guarantee.  A minority of the Supreme Court actually agreed, 
but Maguire CJ said sensibly: “The purpose of the Article is to safeguard the 
independence of judges.   To require a judge, to pay taxes on his income on 
the same basis as other citizens and thus to contribute to the expenses of 
Government cannot be said to be an attack on his independence.”119

In the USA the authors of the Declaration of Independence complained of 
George III who had “made judges dependent on his will alone for the amount 
and payment of their salaries” but the boundaries of the consequent 
constitutional guarantee to protect the salaries of judges in office have 

 
113 Shetreet: Israel p 145-6.  
114  Shetreet: Israel p 146-7.

 
115 Lederman p 769. 
116 Hogg above n 15 p 172.  , 
117  1986)

 
2 SCR 56.

 
(

118  (1996) 20 DLR 449.
 

119 The Irish Reports 1959 p 38: I R Brian Doolan Constitutional Law and 
Constitutional Rights in Ireland (Gill and MacMillan, 1983)  p 75.

 



THE DENNING LAW JOURNAL 

20 

                                                

frequently been tested in the court themselves.  In broad terms the outcome 
has been that direct interference (that is to say outright reduction) is 
unconstitutional: indirect interference (that is erosion) is unconstitutional only 
if two criteria are satisfied:  that the erosion is discriminatory; and that it 
amounts to an attack on independence of the judiciary:120 In the Federalist, 
Alexander Hamilton, a founding father, stated: “Next to permanency in office, 
nothing can contribute more to independence of the judges than a fixed 
provision of their support.”121   Mr Justice Breyer a serving Justice has said by 
reference to these historic statements “The framers also understood that steady 
judicial compensation would help to secure that necessary independence. ”122

The issue was most recently revisited in Williams v USA123 in 2002.   It 
had as its backdrop the Reform Act 1989, which applied to federal judges and 
had two objectives.   

First a strict limitation in the amount of outside income that any judge 
could earn leaving only writing books or teaching as an alternative source, 
together with a strict cap on the latter.   

But second, by way of quid pro quo the maintenance of the judicial 
compensation at a nearly constant level, with the right to automatic annual 
adjustments in judicial pay to take account of inflation.   

In each of the relevant fiscal years – 1995, 1996, 1997 and 1999 - 
Congress legislated to prevent those adjustments taking effect for that year.  A 
minority of the Supreme Court (Justices Breyer, Kennedy and Scalia) held 
that this to be unconstitutional, arguing that the special nature of the judicial 
enterprise should immunise them from cuts in the salaries of other branches of 
government. They proclaimed “Independence of conscience, freedom from 
subservience to other government authorities, is necessary to the 
enterprise.”124

In 1981 the Prime Minister of Australia requested the “Justices of the 
High Court to accept a reduction in their salaries because of the economic 
situation.  The judges refused although they made separate individual 
arrangements.”125

 
120 Atkins v US 556 Fed Rep 20 1028 (1977), Will v US 478 F. Supp 621 (1979). 
Judges fought with partial success Congressional Legislation providing for freezes on 
judicial salaries (1980). Shetreet queries the logic of inclusion of the second if the first 
is satisfied. Shetreet: Israel pp 217-218. 

 
121  No 79 at p 562 ed C Rossiter (New York, 1961).  
122 The Statement of Mr Justice Stephen G Breyer, National Commission on the 
Public Service, July 15th 2002 (“Breyer”).

 
123  535 US (2002). 
124 Dissenting judgment, at 13.

 
 

125  Mr Justice Kirby “Australia” SD chapter 2 p 11.
 



THE DENNING LAW JOURNAL 

21 

                                                

Judges internationally have not been shy to contest in court any perceived 
diminution in salaries including a decrease in real value.  There are examples 
from Brazil, Greece and Spain as well as those I have already cited.126   

Before turning to more contemporary and domestic issues I should now 
belatedly declare an interest.  I served as Chairman of the Judicial Sub 
Committee of the Review Body on Senior Salaries from 2001-2003 before 
Nolanisation compelled me to surrender my seat on the Senior Salaries 
Review Board (SSRB) and hence on its subsidiary body.  I recall that when I 
mentioned my role to an audience of Indian Judges and lawyers in Chennai - 
Madras as it then was - they expressed astonishment that a practising QC 
should enjoy a status, which would, as they saw it, confer such a forensic 
advantage in court.  I am bound to say that I never noticed any particularly 
restrained treatment of my submissions by the Judges, and was more 
conscious of the loss of income sustained by performing an unpaid service to 
the State at the expense of my practice!   

This service, however, gave me a particular perspective on the matter 
under consideration as well, of course, as a particular fascination with the 
subject.   

I turn first to the question of method.  There are various possibilities as to 
who should decide how judges are paid.   

Firstly, it could be the Judiciary itself.  But there would surely be 
principled objections to judges determining how much they themselves should 
be paid.   

Secondly it could be Court users.  But since the legal system provides a 
vital public service, it ought to be substantially financed by state budget, and 
not by payments of those requiring its services.127   

Thirdly it could be the legislature as is the case in Brazil, Australia, 
Belgium and Greece.128  But this, while it has the advantage that the process is 
in the hands of a democratic body, has the concomitant disadvantage of 
cumbersomeness. 

Fourthly, as is typical in some states in the USA, it could be by a court 
system responsible for its own budget, within the limits of a sum of money 
allocated to it by the legislature:129 - a notion which attracted the former 

 
126 USA: Judges at local level: Shetreet “Judicial Indepence” SD chapter 52 p 61. 
Professor Celso Agricola Barbio “Brazil” SD chapter 6 p 53.  For Greece and Spain, 
see Shetreet SD chapter 52 p 673 n 160.  I have had myself to advise the Senior 
Judiciary of Trinidad and Tobago in relation to a threat to their housing allowance. 
127 Shetreet: Israel p 143. 
128 Shetreet: SD chapter 52 p 672, n 153.

 
129 This is partially imitated in British Columbia in Canada and in the High Court in 
Australia.  The Honourable Leonard King: “The IBA Standard” SD chapter 34 p 406. 
In Japan the Supreme Court prepares a budget when the Cabinet proposes to the Diet; 



THE DENNING LAW JOURNAL 

22 

                                                                                                                    

Senior Law Lord, then Vice-Chancellor, Sir Nicholas Browne Wilkinson.  But 
this is inconsistent with British constitutional practice130 as he recognised.  

Fifthly, it could be the Executive without third party intervention as in 
Spain and Sweden. But since the Government is often party to the litigation 
this could compromise the independence of the process.131  As D Pannick QC, 
Fellow of this College, put it succinctly:  “Pay rates for an independent 
judiciary should not be set by the executive, the most frequent clients of the 
courts.”132   

And on this issue LSE is at one with Oxford.  Kate Malleson wrote: 
 
“The way in which judges are ... paid ... provide the potential 
means for punishing or rewarding judges for their 
decisions.”133
 

Sixthly, there could be automatic adjustment of salaries by reference to 
the price index as in California and some Australian states, or to the average 
wage as in Israel.134  But, while this would have the virtue of certainty it 
would have the concomitant vice of inflexibility.  

The British compromise, imitated incidentally in New Zealand135 and 
South Africa136 is in my view the best solution.137  It seems to me a sensible 
method of reinforcing the constitutional guarantee to distance the Government 
as far as possible from the determinations of judicial salaries, while also 
allowing a measure of judicial and outside input.  An analogous philosophy is 
belatedly mirrored in the concept of the Judicial Appointments 
Commission.138

 
in the case of dispute between Court and Cabinet the Diet decides.  Professor Yasnhe 
Taniguchi “Japan” SD chapter 18 p 207. 
130 Sir Nicholas Browne-Wilkinson “The Independence of the Judiciary in the 1980s” 
(1988) 44 Public Law, at 44.

 
131  Shetreet: Israel pp 143-44.

 
132 The Times September 8th 1992.

 
133 Kate Malleson “The New Judiciary” (Aldershot: Ashgate, 1999) (“Malleson”) p 
67. She notes at p 67 however that “in practice ... there does not appear to have been 
any serious suggestion that the government has sought to influence the judges either 
collectively or individu lly in this way.”

 
a

134 l p 44.
 

Shetreet: Israe
135 From 1982, the Remuneration Authority deals with judicial salaries: Remuneration 
Au ority Act 1977 (as amended).

 
th

136   Judges Remuneration and Conditions of Employment Act No 42 2001, s 2(a) (i).
 

137 There are overseas analogues. Shetreet “Judicial Independence: New Conceptual 
Dimensions and Challenges” SD chapter 52, pp 628-629 and p 672 n 155 (Austria, 
Belgium).  
138  Constitutional Reform Act 2005, ss 23-31.  



THE DENNING LAW JOURNAL 

23 

                                                

I say as “far as possible” advisedly, since it must be for the Government 
of the day to enjoy the last word, always within the constraints of the 
constitutional guarantee, on what may be affordable at any particular time.  
Lord Williams of Mostyn QC (then Chairman of Bar Council, later a poacher 
turned game keeper as Attorney General and finally, before his premature 
death, Leader of the House of Lords), called it “dangerous to have an 
allegedly independent body which is then overruled by politicians.”139  As a 
matter of record Governments have rarely declined to take the SSRB’s advice, 
if from time to time they have decided only to stage the increases proposed.   

I have, however, always thought it incongruous that the SSRB’s terms of 
reference include an obligation to have regard to the funds available to 
departments as set out in the departmental expenditure limits.  This blurs the 
boundary between the role of the adviser and the advised.  But since the 
obligation is only to ‘have regard to’ rather than to be bound by such 
consideration, this may be of less significance than at first sight appears.  And 
it does remind the SSRB that their function is not simply to accept judges’ 
estimation of their own value. 

The customary processes is of consultation are (or were during my time 
on the body) well established.  An advance guard of senior civil servants from 
what was then the Lord Chancellors Department (now renamed the 
Department for Constitutional Affairs) would come and explain the 
Government’s view to the sub-committee.  At a later plenary meeting the 
Lord Chancellor would arrive in all his glory accompanied by his Permanent 
Secretary.  Either between or after, depending on the respective party’s 
schedules, the Lord Chief Justice would have audience as spokesman for the 
Judiciary, accompanied by one other Judge, usually Sir Andrew Morritt, now 
Chancellor, - shop steward and shepherd.  After exchange of the usual 
courtesies, more elaborate in the last two meetings than in the first, carriage of 
the debate was left largely to the Judicial Sub Committee, three in number, all 
then lawyers, as the judiciary had originally insisted as the price for their 
participation in the process. 

In a little noted change, after my retirement from the Chairmanship there 
was a temporary purge of lawyers; although now the body has been afforced 
by Sir Peter North QC, Lord Neill’s successor as Vice Chancellor of Oxford.  
How and why this happened will have to await revelations in political 
memoirs or (less likely) in response to a precisely targeted request under the 
Freedom of Information Act 2000.   

For several years I enjoyed some brief encounters of the forensic kind 
with Lord Irvine on the one hand and Lords Bingham and Woolf on the other.  
The Lord Chancellor would plead poverty; the Judges need.  We would 

 
139  28 September 1992 (Bar Conference). 



THE DENNING LAW JOURNAL 

24 

                                                

formulate proposals for our parent body, and recommendations would go 
forth to the Prime Minister in due course in immaculate civil service prose 
with my more rhetorical flourishes sternly sub-edited out.  Never 
underestimate the power as well as the skill of the accomplished civil service 
draftsman! 

For the future under the new constitutional settlement the amount of 
salary in point of law “is to be determined by the Lord Chancellor with the 
agreement of the Treasury,”140 the one with responsibility for the rule of law, 
the other for the wealth of the nation.  The SSRB’s role will continue to be to 
square the circle. 

I turn to the question of criteria.  There is no definitive way of measuring 
what judges should be paid.141  To claim that they are worth such and such a 
figure is to make a judgment more appropriate to the divine than to the 
human.  Justice Breyer of the United States Supreme Court wisely said 
making a case for an uplift in judicial pay to the National Commission on 
Public Service: 

 
“In this world I can find no pay scale that measures an 
individual’s just desserts.”142
 

No such inhibition, incidentally, affected the Judge sitting in Clarksville 
Tennessee, where the Court transcript records the following dialogue. 

 
“Judge: All right.  I sure would feel better if you had a 
lawyer.  You can afford one, can’t you? 
 
Defendant: No, I can’t, Your Honour.  I cannot afford an 
attorney. 
 
Judge: Are you drawing your salary from the fire department? 
 
Defendant: Yes, I am. 
 
Judge: That is a pretty good salary, isn’t it?  I mean by that, 
firemen get paid pretty well. 
 
Defendant: Well, it is not comparable to yours. 
 

 
140 nstitutional Reform Act 2005 s 34 (2).   Co
141 M. Kuijer “The Blindfold of Lady Justice” (E M Meijers Institute, 2004) pp 255-6.

 
142  Breyer p 5.

 



THE DENNING LAW JOURNAL 

25 

                                                

Judge: Well, it ought not to be comparable to mine.  I mean, 
after all, we are the highest in the State.  We are God!”143
 

Axiomatically the Constitutional guarantee must be respected: it sets a 
floor, not a ceiling.  It may be thought by some invidious to protect judges 
against financial risks to which others in the community are vulnerable, but I 
cannot regard it as anachronistic or anomalous. Where the administration of 
justice is concerned, perception is important. Judges must not only be 
independent, but must be seen to be independent.  

It has been argued that there is a need to avoid reduction not only in 
formal but in real terms. Otherwise Judges independence can be compromised 
by a side wind. Shetreet writes:  

 
“Withholding salary increase may be an indirect method of 
interfering with independence at times of higher rates of 
inflation.”144
 

If so, the pass has long since been sold.  The constitutional guarantee 
cannot be so benevolently interpreted.  More realistically there is a need to 
ensure increase in judicial salaries equivalent at any rate to that elsewhere in 
public sector.   The SSRB have indeed to bear “broad linkage” in mind. 

But how much – that is the key?   There are several points to be made.   
Firstly Judges cannot seriously complain that they are under paid in 

absolute terms – although that has not prevented them from making serial 
complaints.   Lord Justice Parker commented in his retirement speech in 1992:  
“If you pay peanuts, you get monkeys”.145  While as a general proposition that 
may have the ring of truth, it surely does not apply to Her Majesty’s judges.   

Nor do the concerns which Lord Denning MR ventilated in a debate on 
the Lord Chancellors’ salary in 1985 tug too tightly at the heartstrings.  He 
said: 

 
“Many of the judges were aggrieved.  The younger judges 
were disappointed they could not provide properly for the 
education of their children, for their holidays and the like.” 

 
adding: 

 
“A salary increase made them reasonably satisfied.” 146   

 
143 we this reference to Julian Dare, Trinity, Oxford 1958-1959. I o
144  Shetreet: Israel pp 144-5. 
145  On 2nd August 1992.

 
146  On 29th July 1985 Hansard 467 HL 88.

  



THE DENNING LAW JOURNAL 

26 

                                                

 
Later concerns were articulated that not only could Judges not pay for 

their holidays; might have less holidays to pay for.  In a Working Party 
chaired by Kennedy LJ in 1995 on a proposal that the long vacation should be 
abbreviated the authors wrote: 

 
“Such a prospect would be unlikely to find much favour with 
the judiciary who, having recently been awarded a pay 
increase below the rate of inflation and far below the level 
recommended by the TSRB, are bound to regard the 
vacations as one of the few remaining attractions of the 
job.”147
 

David Pannick QC has wisely said “any judicial stress would not be 
caused by worries of low pay”,148 not least because of the benefits of stability 
associated with the transition from barrister’s chambers (or solicitor’s office) 
to bench.  One Judge, Sir Peter Bristow, candidly wrote in a memoir: 

 
“You would fairly be said to be relieved of financial worry 
with your bottom placed firmly on the consolidated fund. To 
those who all their working lives had to pay their taxes in 
arrears, PAYE came as an enormous blessing.”149
 

The QC enjoys the hurly-burly of the chaise longue, the Judge the 
peaceful tranquillity of the marriage bed – metaphorically speaking of course. 

Secondly it is difficult to argue that the amount paid per se can 
compromise their independence.  Kate Malleson comments: 

 
“The standards of justice may be poorer in terms of such 
matters as delay and standards of legal advice if less 
resources are available but that need not affect the 
independence of the judges.  Impartial judges can dispense 
justice under the proverbial palm tree.” 150
 

 
147  Review of HCJ Work, Deployment and Numbers para 56. Note too that staging, as 
in 2002, causes “unanimous disapproval and even resentment” Cm 5718 SSRB Ch 4 
pa a 4.5.

 
r

148  Judges (Oxford: OUP, 1987) p 20.
 

149  Peter Bristow J dge for Yourself (William Kimber, 1986) p 25. u
150  Malleson p 56. 



THE DENNING LAW JOURNAL 

27 

                                                

Thirdly high salaries are surely not necessary nowadays to avoid 
corruption in our courts and the original justification for paying Judges has in 
practice evaporated.   As Rodney Brazier has sensibly asked: 

 
“If a person were susceptible to corruption would he not be so 
almost regardless of income?”151
 

In the words of Lord Justice Brooke: 
 
 “And finally, we are paid large enough salaries to render us 
free from the sort of financial worries which might in theory 
fuel the risk of judicial corruption.”152
 

the key phrase being “in theory”.   
At a Judicial Accountability Commonwealth Lawyers Association 

Conference in Kuala Lumpur in 2003, I recall the Chairman, the distinguished 
Australian High Court Judge, Michael Kirby, looking around the table at 
lawyers from Malaysia, Sri Lanka, India, Scotland, England, as well as the 
USA – included pro. tem. for the good and sufficient reason that they were, 
part funding the conference, and saying that in none of our countries had the 
scourge of judicial corruption been erased.  When I mildly inquired whether 
he would provide any example of corruption from England in the last two 
hundred years, he rebuked me for being chauvinistic: Chauvinistic possibly: 
accurate certainly!   

Fourthly, while Lord Bingham has referred to “subtle link” based on the 
“perceived relationship between what someone earns and the status and 
prestige which he enjoys”,153 not even in a materialistic society can it fairly 
be said that the prestige of a position reflects exactly the sum paid to its 
occupant.   Judges may occasionally – in my respectful view unwisely – speak 
of footballers as role models,154 but do we really admire a master of the goals 
more than the Master of the Rolls because one earns £75,000 per week and 
the other closer to £7,500? 

 
151  Brazier Constitutional Practice (Oxford: OUP, 3rd edn, 1999) p 275. 
152 Brooke p 12. However the connection between inadequate pay and judicial 
corruption remains live elsewhere, see J Clifford Wallace “Resolving Judicial 
Corruption” in cd Cyrus Das and K. Chandra Judges and Judicial Accountability 
(C R, 2003) pp 86-101.

 
L

153  See Brazier op cit p 275:  “Enhance the dignity of judicial office.” The Tokyo 
Principles also suggest that remuneration judges should be commensurable with the 
dignity of their profession and b rden of responsibilities (Recommendation R(94) 12.

 
u

154  A v B (2003) QB 195 at 217.
  



THE DENNING LAW JOURNAL 

28 

                                                

The SSRB’s assessment for proper pay is based on an elusive concept of 
job weight, referable more to the quality of what is done than its content.155 
Whereas in the other two groups (senior civil servants156 and senior officers of 
the armed forces) performance related pay has infiltrated the calculation; the 
1997 fundamental review roundly rejected it in these words: 

 
“It would involve systems of management and appraisal 
whose authority and efficiency would be controversial and 
which could be seen to challenge the principle of judicial 
independence.  The view was also expressed that 
performance related pay might lead to a perception that a 
judges actions could be influenced by considerations of 
personal gain and loss.”157  
 

Performance related pay was, however, the subject of internal 
discussion158 and I betray no state secret in identifying the non-lawyers on the 
Body as being less hostile that the lawyers to the notion.  I do not, of course, 
consider that assessment would be impossible.  Although the quality of 
performance of a Judge may not be as easily measured as that of a Senior 
Civil Servant, the Lord Chancellor has hitherto been able to distinguish 
between those whose careers reach their pinnacle on the High Court bench, 
those who are fit to ascend to the rarified atmosphere of the Court of Appeal 
and those who can soar into the stratosphere of the House of Lords – without 
using such crude analytical tools as the ratio of judgments appealed and 
reversed to those appealed and upheld, or throughput in numbers of cases 
dealt with per sitting.   

But in this age of transparency, who would judge the judges, and by 
reference to what standards?  For my part I consider that even evaluation by 
an independent commission would not entirely dispel the impression, false 
though it would surely be, that judges might tailor their judgments to fatten 
their pay packets and might be less robustly oblivious to politician’s criticisms 
that they manifestly are today.  More important still, to distinguish in terms of 

 
155  See The European Charter on the Statute for Judges which mentions length of 
service, nature of duties and importance of tasks as relevant criteria.

 
156 One concern is the fact that, contrary to the historic position, the salary of the LCJ 
has fallen substantially behind that of the Cabinet Secretary: Cm 5718 Report No 54 
chapter 4 para 4.15. 
157 Cm 3451 1997 para 22. The 2002 Fundamental Review, which I chaired, did not 
even raise the issue.

 
158  See “Neither Cloistered nor Virtuous: Judicial Independence in the Twentieth 
Century” M J Beloff QC, Atkin Lecture Reform Club 1999, reprinted in (2000) 
Denning Law Journal 153 at 164.

 



THE DENNING LAW JOURNAL 

29 

                                                

pay between one High Court Judge and another would lead to the conclusion 
that one dispensed a purer justice than the other.  It may be a fiction that all 
judges at the same level are equal; some are clearly more equal than others; 
but that inequality should be reflected in their promotion, not their pay. 

Mr Justice Breyer compiled a melancholy catalogue of the consequences 
of false economy159 causing “major financial insecurity among judges” many, 
if not all, of which can be transposed across the Atlantic - premature 
resignations, diminished attraction of judicial office to well qualified lawyers 
outside the judicial system, repetitive promotion from within the system with 
consequent risk of bureaucratization and lower morale.  Judging, he added, 
might become seen as a temporary assignment, a threat that the odd Fisher or 
Laddie apart, is less resonant in England and Wales, unless schemes are 
implemented to allow for judges to return to the profession. 

He concluded: 
 
“In this way the cuts contribute to diminished institutional 
reforms which in turn promotes public disenchantment and 
lack of trust in a government, less able to get the job done 
well and a lack of interest in participating in the work of that 
government.”160
 

contending that sufficient pay: 
 
“must have and does have everything to do with the nature of 
the institution and the value of the strong, well functioning, 
truly independent judicial system for all Americans.”161   
 

Nor was this a self-serving statement on the fringe of mainstream 
thinking.  In 1989 the report of the American Commission on Executive, 
Legislative and Judicial salaries entitled.  “Fairness for our Public Servants” 
said that reducing the real level of judicial salaries in the USA was 
“threatening to diminish the quality of justice in this country.”162

So we reach the heart of the matter.  While Lord Bingham has modestly 
written.163  

 

 
159  Breyer p 6. 
160  Breyer p 8. 
161  Breyer pp 5-6. 
162  Report at p 27.  
163  Lord Bingham of Cornhill “Judicial independence” at JSB annual lecture in 1996, 
reprinted in Lord Bingham The Business of Judging (Oxford: OUP, 2000) p 64.

 



THE DENNING LAW JOURNAL 

30 

                                                

“The connection between judicial salaries and judicial 
independence may not be immediately obvious,”  
 

he surely was stating the obvious in continuing: 
 
“Our own tradition does depend on the willingness of the 
most successful practitioner at the height of their careers to 
accept appointment to the judicial bench, and I gravely doubt 
whether that tradition can be maintained.” 164    
  

The real issue is surely one of recruitment and retention or staying the 
course, until Judges become, in Lord Bridge’s melancholy phrase “officially 
geriatric”.165 The SSRB’s - own terms of reference – admittedly to be applied 
to various sectors of public service - specify “the need to recruit, retain and 
motivate suitably able and qualified people to exercise their different 
responsibilities”.166  If the ablest eligible candidates – I put on one side the 
controversial claims of diversity – either refuse the invitation to the bench (or 
decline to apply to advertisement) or, once appointed, serve only for so long 
as entitles them to a full judicial pension, if that, the standard of justice will 
inevitably, if imperceptibly, be impoverished.  And in an age when the 
judiciary, armoured with new weapons in the form of paramount community 
law and the domesticated European Convention on Human Rights, and 
imbued with an activist spirit which has not been a constant in post war times, 
play an increasingly significant role in the governance of the nation, any 
lowering of even high standards would be a cause for legitimate concern.  To 
quote Holdsworth: 

 
 “....a good thing is never cheap: and to pay sufficient to get a 
good thing is often the best  economy for thereby expensive 
disasters are avoided.”167

 
164  Ibid p 66. 
165  In Ruxley Electronics and Construction Ltd v Forsyth House of Lords (1996) AC 
344, Lord Bridge concluded his speech elegiacally: “My Lords, since the populist 
image of the geriatric judge, out of touch with the real world, is now reflected in the 
statutory presumption of judicial incompetence at the age of 75, this is the last time I 
shall speak judicially in your Lordships’ House. I am happy that the occasion is one 
when I can agree with your Lordships still in the prime of judicial life who 
demonstrate so convincingly that common sense and the common law here go hand in 
hand”, at 364. 
166  cf Remuneration Authority Act (New Zealand) 1977 (Section 18 (i) (c)) which 
refers to “the need to recruit and retain competent persons.”  
167  Holdsworth LQR p 33. 



THE DENNING LAW JOURNAL 

31 

                                                

 
In England, the discrepancy between earnings at the Bar and on the Bench 

is notorious.168 It features in the biographies and memoirs of famous members 
of both professions.  It was a reason why George Carman QC did not go to the 
Bench – admittedly in Hong Kong.169  In his autobiography Sir Neville Faulks 
described his options in this way.  “I wanted to be “local boy made good”, but 
I wanted to keep my children in bread and boots for as long as I could, and the 
appointment would mean a substantial drop in income”.170  Sir Michael Kerr 
wrote of the agony of his decision to quit Bar for Bench “Above all there was 
the question of money.  I was earning about £38,000 a year near the top of the 
Bar, and I think that a Judge’s salary was then £11,500.”171

This lawyers’ dilemma is no mere contemporary phenomenon. Norman 
Birkett’s clerk wrote: 

 
“When Norman Birkett went to the Bench he made a very 
heavy financial sacrifice and so did I when I decided to go 
with him.”172  
 

The clerk’s sacrifice was appreciated by Birkett,173 and his own 
presumably tolerated.   

As with Birkett, so with Atkin.  Geoffrey Lewis, his biographer, wrote 
 
“For almost the whole of his career, Atkin was troubled by 
anxiety about money ...  By the time he was established as a 
leading commercial silk he was earning some £11,000 a year 
but this relative affluence was short lived, and, as has always 
been the case in England, his appointment to the High Court 
Bench brought with it a sharp reduction in income.  He 
returned more than once to the idea of leaving the profession 
in order to earn more, first as a teacher, later for a post in the 
City and even when a judge, to return to the Bar.”174

 
168 Not only in England; For India see Dr Anand Prakash “India” SD chapter 15 p 
163. 
169  Dominic Carman No Ordinary Man – A Life of George Carman (London: Hodder 
and Stoughton, 2002) p 110.  Carman was not an example of that caricature figure 
“FILTH”: Failed in London, Try Hong Kong: see the novel by Jane Gardam “Old 
Filth” (Penguin, 2005). 
170  ir Neville Faulks A Law Unto Myself (William Kimber, 1978) chapter 6.

 
S

171   Michael Kerr As Far as I Remember (Oxford: Hart, 2002) p 271.
 

172  A E Bowker A Lifetime with the Law (W H Allen, 1961) p 189. 
173  H Montgomery Hyde Norman Birkett (Hamish Hamilton, 1964  p 475. )
174  Geoffrey Lewis Lord Atkin (London: Butterworths, 1983) p 19.

 



THE DENNING LAW JOURNAL 

32 

                                                

 
As in the United Kingdom, so in the United States of America.175
As Breyer put it: 

 
“The real pay of federal judges has diminished substantially 
in the past three decades.  The gulf that separates judicial pay 
from compensation in a non-profit sector, academia, and the 
private sector grows larger and larger.  The result, in my 
view, threatens irreparable harm both to the institution and in 
to public that it serves.”176

 
Breyer compared increases in judicial pay, which had exceeded, the cost 

of living in Canada and the UK with the reverse position in the United States.  
Interestingly, it appears that where - as in England the order of size of income 
would be first practising lawyers, second judges, third law academics, in 
America law academics can outstrip judges – a dispiriting observation for the 
majority of this audience!   

In Germany by contrast in recent times judges, previously less well paid 
than academics, have now overtaken them – reflecting changed perceptions of 
their relative contributions to the law’s development.177

In 1988 the Top Salaries Review Body (TSRB) themselves said (echoing 
Sir Peter Bristow) that drop in income could be mitigated:  

 
“in the light of the status and security of judicial office with 
its prospect of continuing in paid, rewarding and pensionable 
employment to a later age than is possible in most walks of 
life.” 178  
 

But this sanguine statement was made before the Judicial Pensions and 
Retirement Act 1993 which  (amending the Judicial Pensions Act 1959) raised 
the period of service for a full pension from 15 to 20 years and lowered the 
retirement age to 70 prospectively – a double financial whammy, bearing in 
mind that, as the European Court of Justice has reminded us, pensions are 
deferred pay.179 The TRSB anyhow added materially “the discount has now 
become too great.” 

 
175 reyer passim.

 
B

176  Breyer p 8. 
177 Information from Professor Stefan Vogenauer, Professor of Comparative Law, 
University of Oxford and Trinity Oxford alumnus.

 
178 mn 1988 para 45.  C
179 Barber v Guardian Royal Exchange Assurance Group Ltd 262/88 [1991] 1 QB 
344 ECJ.

 



THE DENNING LAW JOURNAL 

33 

                                                

It may well be that as Joshua Rozenberg has written: 
 

“The real problem is not that judges earn too little but that lawyers 
earn too much.”180

 
but unless (unthinkably) there is legislation to cap counsel’s private fees 

the problem is a problem is a problem.  In 2005 thirty barristers earned more 
than £1 million and a select few more than £2 million.181

The recently retired Lord Chief Justice cast a wistful eye East when he 
reflected: 

 
“I have recently returned from Singapore and there the Chief 
Justice … transformed recruitment and the quality of the 
judiciary by obtaining a doubling of judicial salaries.”182

 
I am reliably informed that the Singaporean Judges Remuneration 

(Annual Pensionable Salaries) Order: 
 
“does not deal with the bonuses, car allowances and other 
perks paid to them which bring the total annual emoluments of 
judges to 1 million Singapore dollars.”183

 
Ex Asia semper aliquid novi 

 
How real are these concerns of a diminution in the numbers of those 

willing to accept High Court appointments preferring city, campus or a 
conventional courtroom practice?  Official statistics obscure rather than 
illuminate.  As is common knowledge among the cognoscenti, they resemble 
in terms of accuracy - to use a modern metaphor borrowed from the Shadow 
Chancellor of the Exchequer - the figures for Soviet tractor production, a 
point appreciated by the SSRB.184  When High Court judges were appointed 
by invitation only and not through advertisement, the Lord Chancellors 
department could optimistically, but unrealistically claim that no one counted 

 
180  Joshua Rozenberg The Search for Justice (Hodder & Stoughton, 1994) p 92.

 
181  The Times  September 5th 2005 (figures from the Lawyer Magazine).

 
182 Inner Temple Millemmium Lecture 2001. 
183 Private information from a prominent local lawyer and former Parliamentarian.
  
184  Noting, in 2005, The Lord Chief Justice’s concerns that “the official recruitment 
data masked a more serious problem at the informal approach stage;” Cm 6451 
Review Body on Senior Salaries para 4.6.  



THE DENNING LAW JOURNAL 

34 

                                                

as a loss to the Bench who had not actually declined face to face by that 
sometime refutation of the separation of powers.   

Nonetheless even a decade or so ago it was accepted that some asked for 
deferment described by Rozenberg as “the start of an alarming trend.”185   
And while in 1988 – 1991 there were no refusals.  In 1991 – 1992 – 1 
declined.  In 1992 – 1993 – 6 declined.   

Similarly in April 2000-2001 19 High Court appointments were made 
(seven as a result of advertisement, the others the traditional “tap on the 
shoulder”).  But six people refused appointment.  As we put it in our sub-
committee report in 2002: 

 
“This significant figure almost a third of the number of those 
appointed – calls into question whether there was an 
increasing pattern of refusals which indicates future 
difficulties in attracting appropriate appointees.” 186   
  

The full body were a trifle more cautious: 
 

“In general, we are satisfied that there are no major problems 
at present in recruiting judges of the required calibre at all 
levels.  However, we agree with the sub-committee that the 
refusal of a proportion of those offered appointment to the 
High Court gives grounds for concern.  While judicial pay is 
only one factor, and not necessarily the predominant factor, in 
the refusal of appointment it must not be allowed to diverge 
so far from the pay of the group from which judges are 
mainly recruited that it deters the most able, with the result 
that an increasing proportion of good potential candidates will 
be lost to the judiciary.”187

 
And I am sceptical whether the position has truly improved even over the 

last three years.188  I could immediately name – though respect for their 

 
185 Rozenberg op cit p 93. The Lord Chief Justice’s concerns that “the official 
recruitment data masked a more serious problem at the informal approach stugi was 
no ed in 2005; Cm 6451 para 4.6.  t
186 Report of the Review Body of Senior Salaries in 2002 Cm 5389-11 para 4.26. 
Discussed in rances Gibb “Low Point for High Court Appointments” The Times 5th F
 March 2002.

 
187  Cm 5389-I from paras 31-33.

 
 

188  Although for 2002-03 the Lord Chancellor reported only one refusal and that a 
request for deferment: Report of the Review Body of Senior Salaries in 2003 Cm 5718 
para 4.18; for 2003-04 three refusals were

 
reported by the Lord Chancellor: but the 



THE DENNING LAW JOURNAL 

35 

                                                                                                                    

privacy restrains me – at least 10 senior silks who have resisted the 
temptations of office.  In 2004 the average drop in earnings on appointment of 
a High Court Judge was 53%.189  While pay is not the only factor, that 
militates against acceptance of such judicial appointment,190 the implications 
of these figures can be assessed by someone of lesser intellect than a senior 
wrangler. 

Three principles of judicial pay may be said to be part of our modern 
constitutional settlement: It is unconstitutional to cut the salary of an 
individual judge of a superior court during the currency of his (or her) 
commission.  It is unconstitutional for Parliament to reduce the judicial salary 
scale overall to the extent that it threatens judges’ independence.  And no 
judge can be appointed unless provision is made for his or her salary.  These 
are guarantors of independence, but they are not, by themselves, guarantors of 
excellence.   

In 1933 Holdsworth wrote: 
 
“The remuneration of the judges is not sufficient to induce the 
ablest lawyers in the prime of life to accept judicial office. If 
that state of affairs is allowed to continue it must have serious 
effect upon the administration of the law.  It will impair those 
intellectual standards which have made our English legal 
system a great legal system; it will tend to impair that law-
abiding instinct which is the condition precedent for the 
maintenance of a high standard of civilisation, and it will 
weaken the chief remaining guarantee for the prosecution of 
the liberties of that subject.”191
 

More than seven decades on, we should still heed his warning. 
 

 
SSRB noted the divergence between official and unofficial refusals: Cm 6099 para 
5.33.

   
189 SSRB Judicial Sub-Committee Consultation Document para 5.5 p 15. 
190 Other factors are a distaste for going out on circuit, increasing control by the civil 
service, a sense that in terms and prestige “fings ain’t what they used to be”, and 
co straints on lifestyle. n
191  Holdsworth LQR p 33. See, eg, Ramon Mullerat OBE “The Judges Independence 
from his own Convictions” in The Indian Advocate: Journal of the Bar Association of 
India: Vol XXXII 2004 p 88. 



THE DENNING LAW JOURNAL 

36 

 


	NEILL LECTURE 2006 
	Michael J Beloff QC*