Letters reveal concern over judicial pay cuts as appeal of High Court to leading lawyers wanes

In the Four Courts it is taken as axiomatic that the big cuts to judicial pay and pensions will deter high-quality, experienced lawyers from applying for jobs on the bench.

The rumour mill has it that the trend is already established – many of the high-flyers who would normally have been expected to apply for jobs as superior court judges are showing less inclination to give up their lucrative private practices for a job that promises diminishing financial reward and lower late-career prestige than it once did.

Until now the evidence has been anecdotal. But in correspondence to Minister for Public Expenditure Brendan Howlin late last year – released under the Freedom of Information Act – Ireland's two most senior judges reveal that the courts are already grappling with the problem.

Early last summer the Judicial Appointments Advisory Board advertised a High Court vacancy and drew up a list of recommended candidates to send to the Minister for Justice.

Just before the list was sent, the chief executive of the Courts Service, who is the board’s secretary, received a call from one of the recommended candidates.

The lawyer said he had to withdraw his application. Having done the sums and worked out how much it would cost him to travel to Dublin for weekday sittings, he concluded that he couldn’t afford to take a High Court post.

The account of the incident is contained in a letter from Chief Justice Susan Denham to Mr Howlin on November 29th last year. The person would have made an "excellent" High Court judge, she told Mr Howlin, and she was concerned that this reflected a "new and important reality".

The same issue was on the mind of Mr Justice Nicholas Kearns, the president of the High Court, who wrote to Mr Howlin about the same time.

There were three upcoming appointments to be made on the High Court, Mr Justice Kearns said, and he was “seriously apprehensive that there may be a dearth of suitable candidates”.

What prompted the senior judges to approach the Government was the “well-known fact within our ranks”, as the High Court president put it, that “a number of judges are experiencing very real hardship through financing from their own reduced salaries the burdensome cost of travel from faraway locations”.

There’s a gap in the current system. Whereas judges of the District and Circuit Courts receive travel allowances if they work away from home, this is not available to High Court judges whose family home is outside Dublin.

Previously, wrote the Chief Justice, the cost of travel and subsistence was absorbed by High Court judges: they could pay it out of their salary. But with the 38 per cent reduction in the salary of a High Court judge (and 50 per cent for post-2012 appointees), it “has become most difficult to carry such expense”.

Mrs Justice Denham told Mr Howlin she was “very concerned” that with the reduced salary people outside Dublin would not be able to apply for High Court positions.

“That would greatly reduce the pool for judicial appointments,” she wrote in a letter dated October 25th.

The senior judges asked Mr Howlin for clearance to redirect some Courts Service funds towards travel and subsistence for High Court judges who live at least 100km from Dublin. It would affect only two people, the Chief Justice said, and they were not looking for any additional exchequer funding.

On receiving the letters, an official in the Department of Public Expenditure drafted a reply that denied the request.

The letters – duly issued with the Minister’s stamp to Mrs Justice Denham and Mr Justice Kearns – reminded the judges of the economic crisis, the Government’s “difficult choices” and the pay cuts Ministers had accepted.

It said the “general rule” in the public service was that people travelling to and from work were not reimbursed for the cost of such travel. There was “a small number of exceptions to this rule”, but these were “often for historic reasons”.

The letter to Mr Justice Kearns added that, notwithstanding the reductions in judicial salaries, “I am confident that the prestigious nature of judicial office and the example of those who serve in such offices will continue to attract candidates of a high standard as it has done to date.”

The Chief Justice wasn’t impressed with Mr Howlin’s response. On November 29th, in a letter marked “Private and Confidential”, she urged him to reconsider.

Picking up on his reference to ministerial pay cuts, she pointed out that the take-home pay of a High Court judge appointed after 2012 was 50 per cent less than when the cuts began (the reduction for Ministers was 35 per cent).

“The judiciary has played a critical role, being the third branch of Government, as we weather this fiscal crisis,” she wrote.

She pointed out that the “exceptions” to the travel allowance ban referred to by Mr Howlin included Circuit and District Court judges and members of the Oireachtas.

“I think it is fair to consider that Oireachtas members who live outside of Dublin are in an analogous position to non-Dublin based High Court judges,” she wrote.

This exchange did not occur in a vacuum. Relations between this Government and the judiciary have been difficult since the beginning.

Judges feel their independence is being chipped away and resent not being consulted about the big cuts to their pay and pensions. The Government thinks the judges are making too much of it.

These long-standing tensions help explain the unusually sharp language.

In her letter, the Chief Justice told Mr Howlin: “I regret that your decision will result in Ireland’s High Court judiciary becoming more homogenous . . . I wish to see a more diverse judiciary in the High Court, for the good of all Ireland, and not one almost exclusively from Dublin.”

As of late January, Mr Howlin had not written back.

What is a High Court judge paid?
The annual salary of a High Court judge is €191,306 for those who were appointed before January 1st, 2012, and €172,710 for those appointed after that date. This means that the take-home pay of a High Court judge appointed before 2012 is 38 per cent down on that paid in 2008. For new entrants, the reduction is 50 per cent.

Pension and lump-sum benefits for judges are calculated by reference to total reckonable service and salary on the last day of service.

In the case of High Court judges, pension comprises 1/40th of salary for each of the first five years of service and 3/80ths of salary for each subsequent year of service – subject to a maximum of ½ times salary. The Department of Public Expenditure and Reform says this accrual rate is almost twice as fast as for other public servants.

Pension terms have changed in recent years. Under the Public Service Pensions (Single Scheme and Other Provisions) Act 2012, incoming judges will have to serve 20 years instead of 15 before they can draw a full pension. They also incur additional liability to tax in respect of the judicial pension and any savings for private pension provision made while working as barristers or solicitors.

The High Court regularly sits outside Dublin. When it does, judges are entitled to some travel and subsistence expenses. They are also paid expenses for attire and attendance at conferences in their official capacity.

Last year, the 33 High Court judges together claimed €121,167.36, including €7,007.62 on travel, €104,129.34 on subsistence and €10,030.40 on “judicial attire and incidental costs”. Some 98 per cent of judges’ travel related to mileage.

The High Court judge who was paid the highest expenses last year received €9,462.00. The lowest outlay to a single judge was €80.35. The Courts Service says total judicial costs last year were almost 30 per cent lower than in 2008.

Excerpts – In their words:
- From Chief Justice Susan Denham to Minister for Public Expenditure Brendan Howlin, October 25th, 2013: I bring before you a matter of personal concern, which does not arise from any applications or delegations to me. I seek authorisation to pay travel and subsistence allowances to High Court judges whose family home is outside Dublin. If such is authorised, the funding would come out of the Courts Service budget.

Thus, I am not seeking any additional funding.

I am very concerned that with the reduced salary for new High Court judges, people living outside Dublin will not be able to apply for High Court positions. This would greatly reduce the pool for judicial appointments.

- From Mr Justice Nicholas Kearns (above), president of the High Court, to Mr Howlin, October 30th, 2013: It is a fact well known within our ranks that a number of judges are experiencing very real hardship through financing from their reduced salaries the burdensome cost of travel from far away locations.

We have three upcoming appointments to be made in the High Court and I am seriously apprehensive that there may be a dearth of suitable applicants for all these reasons.

- From Brendan Howlin (above) to Chief Justice Susan Denham, November 14th, 2013: While I appreciate the arguments you have made in respect of paying some High Court judges for the cost of travel to/from work I regret that I am unable to accede to your request at this time.

- From Chief Justice Mrs Denham to Mr Howlin, November 29th, 2013: I am disappointed with your response . . . The judiciary can only engage with Government on such issues in a constructive and respectful manner, conscious of the boundaries set by the Constitution.

It should be a matter of concern at the highest levels of Government that you have refused a request which would not create an additional burden on the taxpayer, and the effect of which may well contribute to a ‘second best’ judiciary in Ireland.

I regret that your decision will result in Ireland’s High Court becoming more homogenous.