Pensions for Recorders (and other part-time judiciary)

Date: November 28, 2007

Expertise: Employment

The Bar Council’s response. What do you think?

You may have seen the Chairman’s circular in response to my e-mailed message in which I urged Members of the Bar to withhold the voluntary part of their subscriptions and, if thought appropriate, to redirect the money saved to the fighting fund which I am collecting for a purpose which, I suggest, most barristers will recognise as of actual or potential benefit to them. In case you did not see the original message I attach a copy.

The Chairman criticises me for saying (wrongly, he says) that ‘while the Bar Council recognises the likely merit of his claim, it refuses to lift a finger to help and its excuses are pathetic’. The Bar Council’s actual words used in relation to the merit of the claim were that the Remuneration Committee of the Bar Council “recognises also the force of your arguments” and the General Management Committee of the Bar Council “recognises its arguable legal merit”. Until the Chairman’s circular the Bar Council had never suggested to me that the litigation should be regarded as speculative. Nor had I ever been told that the Bar Council had taken advice from anyone recognised as expert in the field whether raising doubts about its merits or at all.

The Chairman quotes a passage from a letter that I wrote to the Vice Chairman of the Remuneration Committee. He suggests that, writing in 2005, I was ‘happy enough’ with the Bar Council’s handling of my concerns. The passage he quotes concerned events ten years earlier. I set out in full the paragraphs of my letter so that you can form your own view as to whether I have been fairly quoted:

“A few years ago [April 1995] I had occasion to take issue with the unfair way in which, while the permanent judiciary received their full salaries while attending JSB training sessions, Recorders, who were under the same obligations to attend, were only paid half the daily rate for sessions that usually ran much longer than the usual court day. I took this up with the Bar Council and learned that the LCD had made an agreement with the Bar Council in its representative capacity that barrister Recorders would accept remuneration on this basis for such attendances. This basis of remuneration continues to this day.

What this does show is that, in collective bargaining terms, the LCD (now DCA) recognised the Bar Council as the appropriate negotiating body in relation to barrister Recorders and the Bar Council accepted that role.

The fact remained that the arrangement was demonstrably unfair and, as one would expect, the LCD’s arguments were entirely spurious at least in respect of those with full Recorderships. Your redoubtable predecessor [name] and the then Remuneration Committee, took up the cudgels on my behalf and on behalf of the other Recorders. The fact that we were in the event unsuccessful was not due to any want of trying on their part. They did not seek to fob me off in the terms of the third paragraph of your letter.

The present issue [i.e.pensions] is far more important than the one just referred to.”

In 1995 the Bar Council was ultimately powerless in the face of an obdurate LCD. Now that part-time workers are entitled, generally speaking, to the same remuneration (including pensions) adjusted pro rata as that of their full time colleagues, the Bar Council is not powerless and does not have to accept the dictat of the Ministry of Justice.

In response to the Chairman’s bullet points:

I do not accept that the claim only affects “a relative minority of Barristers”. It affects all those who are Recorders, all those who are part-time Chairmen of many different tribunals, all those who may at some stage in their careers be appointed to one or more of such jobs and all those who might apply to do so if the position was pensionable. Applicants are appointed to such jobs because they are Barristers. I have no figures for tribunal chairmen but 91 ½ % of the 1,201 Recorders are Barristers.

Government departments always say that if a particular claim is met the money will be taken for another deserving cause. They played the same record in 1995. The idea that, if the Bar Council (by withholding support) assists the Ministry of Justice to defeat the pensions claim by making it too expensive to pursue, the Ministry will be so grateful that it will donate the money saved to the “funds for hard-pressed juniors in publicly funded work” is ridiculous. The Ministry will treat those hard-pressed juniors just as badly as it would have done if the pensions issue had not arisen in the first place. It is naïve to think otherwise. The fact is that, if the DTI or the Foreign Office has lumbered the Ministry of Justice with an obligation to pay part-time judicial pensions because they failed to secure an opt-out for judges’ pensions when signing up to the EU ‘Social Chapter’, a supplemental estimate will have to be raised to cover the costs. It is not for the Bar Council to make common cause with the Ministry of Justice or the Treasury on the issue.

I am unaware of the Bar Council having taken the opinion of anyone recognised as an expert on this aspect of European Law. If they have, they have not communicated its existence or contents to me. A professional body such as the Bar Council should assist its members. If they have received advice by reason of which I should regard the claim as of uncertain merit or speculative, I should be supplied with that advice. The opinions of counsel obtained by at least two of the professional bodies of different tribunal chairmen have been made available to their members. The Ministry of Justice has to make Recorders available to work approximately 25,000 judge days a year in the Crown and County Courts if it is not to increase the number of Circuit Judges (who cost more anyway). It is unrealistic to suggest that the Ministry will, for any significant period, leave this requirement unfulfilled because it has to pay pensions to Recorders. Recorders, in the words of the DCA, perform “a valuable role by enabling rapid and flexible deployment of judges to deal with fluctuations in workload” (and they are only paid when needed). The Courts have to be manned and the Ministry has no other resource.

The part-time judiciary will only be entitled to pro rata equal treatment to that of their full time colleagues if the government is obliged by law to implement and obey the Directive or to avoid discrimination under the Equal Pay Act. It is in the interests of all present and future part-time judges for it to be established definitively whether this obligation exists. If it does, the Bar Council upholding the rule of law should be assisting its members in enforcing their rights against the State not assisting the State in avoiding its obligations.

A trade union or a professional body which does not see its primary function as the defence of its individual members’ rights against an over-mighty employer, or the State itself, has lost sight of its true purpose. If the Bar Council believes that the other things upon which it spends our money should take priority over assisting a significant group of its members to assert their rights, it is open to you, the subscribing members, to take a different view and to make that clear by withholding the voluntary part of your subscription and, if you think fit, by devoting the money to an endeavour which will now, or at some stage in the future, more tangibly defend your interests and those of many other barristers. That is what I ask you to do.