How much judges are paid is a thorny issue for governments. It shouldn’t be. Rawpixel/Unsplash

Why politics shouldn’t influence how much we pay judges

Have you ever wondered who determines the salaries and benefits paid to judges, and on what basis they decide? Until I was asked by the Canadian Provincial Court Judges Association, an independent federation of provincial and territorial judges’ associations, to conduct research into the existing process for determining judicial compensation, I had not thought much about the issue.

But in my research study, I identified at length how the process has become highly contentious.

Secure and appropriate compensation for judges is a constitutionally recognized component of judicial independence, which itself is a set of interrelated principles meant to ensure that the rule of law applies fairly to everyone, including governments.

To ensure both the reality and appearance of independence, judges can’t simply go to governments and ask for pay raises. They can’t form unions to bargain collectively. Nor can they negotiate through the media.

To engage in any of these actions would imply that judges might relax their scrutiny of government action as a trade-off for a salary increase.

Therefore, any process for determining judicial compensation must balance the requirements of responsible government and democratic accountability with the requirement for secure and appropriate compensation. That compensation must ensure public confidence in the independence of judges as well as attract high-quality legal talent to the multiple levels of courts.

Public spending cutbacks

Historically, governments claimed they had a constitutional right to determine judicial compensation unilaterally. During the 1990s, in response to an economic downturn, governments imposed cutbacks and freezes on spending in the public sector, including the courts.

Losing financial ground to inflation, and to lawyers in the private sector, associations of judges took governments to court to protect their independence. Eventually, on appeal from decisions in various provinces, the Supreme Court of Canada ruled in 1997 that compensation could not be determined until after a commission process that must be “independent, objective and effective.”

The Supreme Court of Canada is seen in this May 2018 photo. The court ruled more than 20 years ago that a commission process had to be put in place to determine judges’ compensation. THE CANADIAN PRESS/Sean Kilpatrick

Within two years, all provinces and territories had created commissions (called tribunals or committees in some jurisdictions) that typically operate on three-year cycles. Governments and judges select members of these commissions, along with a chairperson chosen by the two sides.

These principles were confirmed in another landmark case in 2005. The Supreme Court made it clear that an effective commission process did not necessarily require binding rulings, only that governments treat recommendations seriously and provide meaningful reasons for why they might decide to reject or alter recommendations from commissions.

Politics involved

The court recognized compensation decisions were inherently political, but it hoped that the commission process would significantly “depoliticize” decision-making.

Unfortunately, the opposite has happened.

Especially since the economic downturn in 2008, governments have taken a hard line on compensation. Acrimony, conflict and litigation became the pattern due to the rejection or reduction in the pay raises proposed by commissions, often without compelling reasons or evidence to support such decisions. Almost all provincial court judges’ associations, in fact, have been in court over the past decade.

Judges have felt compelled to take governments to court in order to enforce their constitutional right to secure adequate compensation. Such court battles involve significant costs of time and money for both sides. And the often over-simplified, sensational media coverage risks bringing the judiciary into disrepute.

Governments often make a series of arguments on why they should not be bound by commission recommendations.

They claim the Constitution requires that only ministers and legislatures can be responsible and accountable for spending. They insist that in periods of budgetary restraint, spending on courts cannot be protected while cuts are being made in other fields like health care. Nor, they argue, is it fair to protect the incomes of judges while other public employees are undergoing wage freezes or pay cuts.

Finally, governments argue that commissions fail to take into account their budgetary priorities and/or incorrectly weight the various factors that the law requires them to consider.

Implicit approval

None of these arguments is entirely persuasive. By approving legislation that establishes commissions, governments are implicitly approving future spending. Open-ended spending authority is granted to election agencies, after all, to ensure fair elections.

Similarly, binding authority for compensation commissions would protect judicial independence. Spending on judicial salaries is a minuscule part of total spending and governments never explain how pay increases will prevent spending in other high-priority areas.

Judges are not regular public servants since they cannot form unions or bargain collectively, and so determination of their compensation should not be treated as part of a government’s collective bargaining strategy with its unionized employees.

Commissions are not bound by law to consider the budgetary strategies of governments, and to do so would inappropriately drag them into the political fray.

Finally, when governments reject commissions’ pay recommendations for judges because they disagree with the relative weight assigned to different factors, they undermine a compensation process that is meant to be independent and objective.

Two reforms could ease public backlash

The main problem with the current compensation process is not constitutional or monetary, it’s political. Governments fear a public backlash if they give pay raises to judges who earn a lot of money compared to most voters.

Two reforms could help to address the political problem.

First, commissions should be granted binding authority. A binding model provides political cover for decisions that may be unpopular in the short term. Binding rulings also reduce conflict and litigation.

Second, another stage should be added to the commission process that would make interim recommendations public, allowing governments and judges to offer additional reasons and evidence for their position before a commission makes its final decisions.

This additional stage would allow for consideration of unexpected developments and could increase public support for the final decision.

In combination, these reforms would help to create a compensation process that is independent, transparent, objective, balanced and effective.