No need for legal protection of judges' pay
I refer to the editorial ('Judges' salaries need protection by law', September 24). Judicial independence does not require a law banning cuts of judges' pay. Constitutionally, such a law would be cosmetic since a legislature cannot bind its successors, who have equal power to make or unmake laws.
Common-law principles of judicial independence permit cuts of judges' pay in non-discriminatory economic measures affecting all people paid from the public purse. The Supreme Court of Canada said: 'Where economic measures apply equally to clerks, secretaries, managers, public sector workers of all grades and departments, as well as judges, how could judges be manipulated?'
The Mason Report was prepared by a non-permanent Court of Final Appeal judge. Consultants should refuse assignments in which they have a conflict of interest or which might compromise their objectivity or professional interest. Judges should not advise the executive. The Mason Report was essentially a salary claim asking the government to introduce laws prohibiting cuts of judges' pay, and specifying 'broad relativities between judicial remuneration and the remuneration of Principal Officials and civil servants', translating into a pay rise exceeding 50 per cent for appellate judges.
A paper prepared by a law professor for the standing committee on judicial pay demonstrates material inaccuracies in the Mason Report. For example, the report claims Britain absolutely prohibits cuts of judicial pay under the Act of Settlement 1701 but does not mention subsequent statutory cuts in judges' pay, such as in 1931. Judicial pay can still be cut by primary legislation.
It may be expected that top barristers are comfortably off by the time they join the judiciary. Judges also enjoy generous double pensions. Furthermore, cornering or choosing the most lucrative end of the legal services market is not inevitably an index of the professional instincts and legal ability required for judicial service. There are also able and experienced lawyers - solicitors as well as barristers - in both the private and public sectors outside the small circle of high-earning senior counsel. Many work away on the equivalent of less than lower-end civil service directorate pay and are professionally content in doing so.
Justice Sandra Day O'Connor said that judicial independence and impartiality require drawing from the largest possible pool of meritorious candidates.
