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the Fiscal Independence

Fiscal independence is closely associated with judicial independence in the judges’ minds in England. There is no doubt an important element of truth to this and much has also been written about the absence of promotion on the English bench. In the 1870s, for instance, the Court of Appeal was paid at the same rate as the High Court, lest promotion to it be thought of as “a promotion.” All this has since changed. The Court of Appeal and House of Lords are paid at levels thought appropriate for their seniority. Circuit judges are occasionally appointed to the High Court, and those who are not may be designated Senior Circuit Judges with a higher salary. Much of the work of the Crown Court is done by part-time Recorders and Assistant Recorders; practicing members of the bar and, as we have seen, candidates for judgeships are expected to have served as Recorders and may well have acted as a deputy High Court Judge.

Such a complex system inevitably means that the classical view of the independence of individual judges today is seen in the much broader framework of the courts as a provider of a social service—namely a dispute settlement process provided by the State. In the past, many claims that passed under the rubric of judicial independence had about them the whiff of trade unionism if examined from the constitutional viewpoint rather than that of the Welfare State. Any interest of litigants was assumed to be inferior to the demands of State and constitution and, one might add, profession.

Nor should we be taken in by all the claims of integrity and excellence. If we look back to the seventeenth and eighteenth centuries, the great offices of State, including the judiciary, were an opportunity to accumulate wealth. Judges, often from modest circumstances, not infrequently became significant landowners and members of the aristocracy. While judicial salaries were low, judges received a multitude of fees from all stages of litigation and were free to sell the right to become “court officials.” For instance, until well into the nineteenth century, masterships, themselves lucrative, attracted very significant sums.

The system was put on a more rational basis under the influence of the utilitarians. High Court judges’ salaries were set at £5500 in 1825—an immense sum for those days—but were reduced to £5000 in 1832, the year of the Great Reform Act. Such salaries still enabled judges to compete in wealth with the great landowners. Indeed, economic historians tell us that during the nineteenth century, Britain’s economic fortunes meant that £5000 became worth more not less. Yet, in the 1870s when Gladstone talked of cutting salaries, the judges greeted him with cries of horror as they refused to discuss his reforming Judicature Bill. To Gladstone’s suggestion that “not only their salaries but also their pensions were extravagantly high,” Chief Justice Bovill of Common Pleas argued that, “since the judges’ salaries were fixed, everything, especially house rents, servants and horses have become very much more expensive.”[24] Yet, judges made compromising deals. For example, while the salary of the Chief Justice of Queen’s Bench was set at £10,000 in the 1820s, Campbell in 1850 agreed with the Prime Minister to take only £8,000 for the job.[25] In the twentieth century, judges may have had more cause for complaint about salaries, but that topic is probably best looked at under the collective aspect of judicial independence.