HL Deb 15 July 1975 vol 362 cc1221-8

8.26 p.m.

The LORD CHANCELLOR (Lord Elwyn-Jones) rose to move, That the draft Maximum Number of Judges Order 1975, laid before the House on 19th June, be approved. The noble and learned Lord said: The purpose of this Order is to raise the maximum number of ordinary judges of the Court of Appeal from 14 to 16. I emphasise the word "maximum" because the Order does not commit either the House or me to any particular appointments and I shall recommend an appointment only when I am satisfied of the need. Nevertheless, the state of business in the Court of Appeal is such that I think it will in fact be necessary to recommend two further appointments if the House gives me the necessary authority.

I will explain briefly why it is necessary to seek the approval of the House for this Order. Under Section 1(1)(b)(i) of the Administration of Justice Act 1968, the maximum number of ordinary judges of the Court of Appeal, in England and Wales, was fixed at 13. Section 1(2) and (3) of that Act provided, however, that the maximum might be increased by Order in Council subject to the Draft Order being laid before Parliament and approved by Affirmative Resolution of each House. The maximum number of ordinary judges of the Court of Appeal was so increased from 13 to 14 in July 1970 and there are now 14 Lords Justices in post. It is accordingly necessary for me to promote this Order if further full-time appointments to the Court of Appeal are to be made.

The need for the Order is the steady increase in work in recent years of the Court of Appeal, which is now one of the busiest courts in the country. I pay tribute to the judges who man it for the way they have carried out their very heavy burden of work. As your Lordships will know, the Court of Appeal deals with both civil and criminal appeals. A normal sitting of the court comprises three judges—in criminal cases usually the Lord Chief Justice, or one Lord Justice and two High Court Judges; in civil cases the Master of the Rolls and two Lords Justices, or three Lords Justices. At any one time three Lords Justices are normally occupied on criminal business, leaving 11 and the Master of the Rolls himself available for civil business. Until last autumn four divisions usually sat on civil business but over the winter, in order to try to cope with the work, this has had to be increased to five.

The additional judge-power needed to staff the extra division of the Court of Appeal has been found by inviting retired judges to sit almost continuously and by calling upon other judges who could be spared from their normal work either in the High Court or the Appeal Committee of your Lordships' House. Over the past few months this outside help has been equivalent to two extra judges sitting full-time and I am indeed grateful to those who have come forward to help, especially from retirement. But these arrangements have inevitably led to a want of continuity in sittings and to occasional lost half-days.

It is not satisfactory that the business of the Court of Appeal should be managed indefinitely in this way, nor would it be safe to assume that it would be practicable to do so. Both the Civil and Criminal Divisions of the court have been faced with considerable extra work. In the Civil Division, following a relatively stable period between 1969 and 1972, the number of appeals rose to 1,108 in 1973 and, in 1974, to 1,177, compared with an average of 930 in each of the four previous years. This marked upward trend has continued in the period up to 23rd May this year, with 514 appeals set down, as against 444 in the corresponding period a year ago and 396 in 1973. Happily, the 567 appeals outstanding at the end of May this year were about the same as last year, but this was achieved only by the court sitting, as I have said, in five divisions instead of the usual four.

One reason for the increase in the number of outstanding appeals has been an increase in the average hearing time from one day per case in 1970 to nearly 1.3 days at the end of 1972. Though the average for 1973 and 1974 was lower than 1972, there is nevertheless a clear indication that appeal hearings are taking longer—perhaps as much as 15 per cent. longer—than a few years ago. This trend is appearing in other courts, too. There appears to he no simple explanation for it.

There have been two other features of the greater workload of the Court of Appeal in civil cases in recent years. One is the increase in the number of final appeals in cases heard in the county court, which rose from 209 in 1972 to 289 in 1974—a rise of more than 38 per cent. The other feature of the heavier workload has been the increase from 128 cases in 1972 to 207 cases in 1974 in interlocutory appeals in divorce cases, both in the county court and in the Family Division. These are often cases involving the custody of children and requiring urgent attention. To cope with them, the Master of the Rolls has sometimes had to man the court with only two judges. Though this is undesirable, it has been essential in order to get the work done.

The number of outstanding criminal appeals has also risen in the past 12 months, I regret to say. It has gone up from 1,267 at the end of March 1974 to 1,682 this year—an increase of 33 per cent. This is the fourth successive quarter during which the number of outstanding appeals in the Criminal Division has risen. Although I recognise the need to make no more full-time judicial appointments than are absolutely necessary—and I am sure that my predecessor, the noble and learned Lord, Lord Hailsham, will agree with that proposition —I should be failing in my responsibility for the administration of the higher courts if I were not to take reasonable steps to ensure that appellants, both civil and criminal, have their appeals heard as soon as can conveniently be arranged. This applies particularly in the Criminal Division of the Court of Appeal where the appellant may be in custody. I do not believe that the court will be able to meet the demands which are being put upon it without at least one, and probably a second, full-time appointment in the near future. I therefore hope that the House will agree that it is appropriate to increase the maximum number of ordinary judges from 14 to 16 in the Court of Appeal, as proposed in the Order. I beg to move.

Moved, That the draft Maximum Number of Judges Order 1975, laid before the House on 19th June, be approved.—(The Lord Chancellor.)

Lord HAILSHAM of SAINT MARYLEBONE

My Lords, I am sure the House would be wise to accede to the noble and learned Lord's request, melancholy though the necessity undoubtedly is, and sad though the reasons for it are. It fell to my lot, when I was occupying the position of the noble and learned Lord, to appoint more judges than any previous Lord Chancellor in history. I am afraid that the noble and learned Lord is going to break my record. That is no fault of his. One thing we do know—and I believe it is worth saying—is that it is much cheaper for the public and for the users of the courts to have judges occasionally not fully occupied, than it is to have people waiting in queues outside the courts for their cases to come on, at their own expense. That is justice deferred. It is also justice denied, or at any rate denied except at an exorbitant cost. I am sure that this House and, I hope, another place, will accede to this request.

The only alternative to doing what the noble and learned Lord asks, if the work continues to mount, will be to have a number of additional puisnes and to man the Court of Appeal with additional puisnes. That is not satisfactory. Some—at any rate, in the Queen's Bench and Family Divisions—have to go on circuit and what is important if this backlog of appeals continues to mount is to have a regular corps of Lords Justices to try them. One thing which I was afraid of has not, I believe, happened as yet, though I was beginning to be concerned about it towards the end of my time as Lord Chancellor. It was that this constant drain on the resources of the Bar would either cause litigants to lose adequate representation in court, or else would reduce the standard of judges upon whom we depend for the administration of our cases. Both are serious. To take a simple example, one case which occupied public attention a great deal was the thalidomide case. I was obliged to take for the Bench counsel after counsel who had been professionally engaged in that case. I had no option, because the alternative would have been to appoint judges of a quality not equal to those whom I chose.

But all this is very disturbing. The Bar is a very small profession. There are only 3,000 members practising, or thereabouts—the noble and learned Lord will know the exact figure now. We started with 2,500 when I began in 1970, and the increase has not been wholly adequate to the demand. All this is extremely worrying. To get a mature member of the Bar who is ripe for the Bench, one cannot just pick him off a bush like a gooseberry. Such people have to be matured by practice over a period of years, and we are still suffering from the period before the introduction of legal aid when the Bar was starved of work. The consequence was that many promising figures left the profession. They cannot be replaced now. What we are taking is what we have. I believe that it says a very great deal for the Bar and the Bench that we have not so far reduced the quality of the High Court, and I feel that we ought to recognise that fact.

This cannot go on for ever. We must increase the supply of barristers to replenish the Bar in future years, if the increase of work is to continue. This must occupy the mind of the noble and learned Lord, and indeed of the Treasurers of the Inns and the leaders of the profession generally. The provision of accommodation and training are matters of constantly increasing worry to those of us who are concerned with these matters, and the noble and learned Lord is fully aware of the situation. It is very gratifying to know that in the Court of Appeal we are not, in these stringent times, incurring any additional expense over the creation of puisnes, because at a very early stage in the history of the Court of Appeal those worthy gentlemen were offered the alternative of a higher rate of pay or a Privy Councillorship and, to their infinite credit, they chose the higher honour of the two. I have never known why. I support the noble and learned Lord in what he said.

Baroness STEWART of ALVECHURCH

My Lords, I wonder whether my noble and learned friend the Lord Chancellor will take this opportunity to say something about the appointment of women judges? As my noble and learned friend knows, only two of the 97 judges in the High Court are women, and only two of the 161 QCs appointed between 1970 and 1974 are women. We all know that the situation cannot be transformed overnight. But if my noble and learned friend could make a positive statement about policy in this field, and if young women barristers could be given hope and encouragement, and could be persuaded that their chances now are as great as those of their male colleagues, perhaps in 10 or 15 years' time we might have in our courts as many women judges as men judges.

The LORD CHANCELLOR

My Lords, I am most grateful to the noble and learned Lord for his support of the Order. He touched on matters which are clearly of concern to me. I am happy to say that the drain on the resources of the Bar has not reached danger point. I agree with him that the appointments to the High Court Bench, and indeed to the other branches of the Judiciary, have been maintained at an appropriate high level of quality.

The question raised by my noble friend Lady Stewart of Alvechurch—about which she was kind enough to give me advance warning—is of course important. But I can assure her immediately that I and my predecessor, and his predecessor, have been conscious of the desirability of having women on the Bench at each level—the High Court at the highest, and the lay magistracy at the base. Appointments must—and she will readily agree with this—be on merit; and in the end the limiting factor so far as the appointment of women to judicial office is concerned, is that the proportion of women among the total number of practising barristers is still comparatively small. The noble and learned Lord was venturing to comment upon the number of barristers in practice. In February of this year the number was 3,439, and of those only 272 were women; 7.8 per cent. as compared with 7.5 per cent. in the previous year, so it has gone up a little proportionately.

Those are the basic facts which limit the source of supply to the Judiciary. Quite a number of the 272 women barristers had not been called long enough to be eligible for judicial appointments anyway; which in most cases require a minimum of experience at the Bar. Nevertheless, as I said, I have certainly—and my predecessors have, too—appointed a number of women to judicial office, and of course I intend to continue to do so. The count, if I may somewhat irreverently put it that way, of women in judicial office at the present time is as follows. On the High Court Bench, there are two, Mrs. Justice Lane, who was appointed to the Family Division in 1965 having been promoted from the county court Bench, and Mrs. Justice Heilbron, who was appointed in October 1974, having formerly been appointed a recorder by the noble and learned Lord, Lord Hailsham of Saint Marylebone, in 1972.

As to the Circuit Bench, there are four women circuit judges, one of whom was appointed in 1971, two in 1972 and the fourth in 1973. Among the stipendiary magistrates, two women have been appointed. I have just appointed the first woman Family Division registrar. Five women recorders have been appointed and of the 26,000 lay justices 9,100 are women, and, if I may say so, my noble friend Lady Stewart of Alvechurch is one of the most distinguished among them.

That is the count. I agree that in relation to the numbers of judicial appointments it is still small, but the number is increasing and, as I have said, applying the test of ability to do the job, I am very conscious of the desirability of having qualified women on the Bench at each level. I hope that that will be reasonably reassuring to my noble friend.

Baroness GAITSKELL

My Lords, is the noble and learned Lord the Lord Chancellor really saying—and I am not suggesting anything—that the discrimination lies in education, and in the pattern and customs in education for the very small number of judges, and that he takes no responsibility himself for the Judiciary in this respect?

The LORD CHANCELLOR

My Lords, I am not saying anything of the kind; indeed, that is not so. But the fact is that for reasons which, perhaps, it is not fully appropriate to go into at this stage, the Bar has not been attractive to women as a profession. Whether it is because of the difficulties of the calling or the problems it has given rise to in the past, I must confess readily that there was a reluctance, perhaps, in the Temple to admit women barristers as members of Chambers. But that reluctance has broken down a good deal in recent years, certainly in my time at the Bar. Initially it was regarded with horror, then it moved to a state of grudging acceptance and now it is at a state of full acceptance as equals at the Bar. Women find other more useful and attractive occupations upon which to embark. I have not made a survey of potential entrants, but there is certainly no lack of encouragement on my part.

As the noble and learned Lord indicated, the dreadful problem that is being met at the moment at the Bar is that of accommodation. We are all—the Inns of Court and myself—grappling with that. But I can assure my noble friend Lady Gaitskell that there is every interest and concern in my mind that this progress should be advanced. But she may well answer better than I can why it is that women find better things to do than become barristers at law.

On Question, Motion agreed to.