HC Deb 20 April 1921 vol 140 cc2021-32
The ATTORNEY-GENERAL (Sir Gordon Hewart)

I beg to move, That an humble Address be presented to His Majesty representing that the state of business in the King's Bench Division of the High Court of Justice requires that a vacancy should be filled in the number of puisne Judges of the King's Bench Division, notwithstanding that the number of those Judges amounts to fifteen or upwards, and praying that His Majesty will be graciously pleased to fill such a vacancy accordingly in pursuance of The Supreme Court of Judicature Act, 1910. This is not a case for many words. As the House, is aware, when the Act of 1910 was passed there was a serious congestion of business in the King's Bench Division By the provisions of that Act, the number of puisne Judges was raised from 15 to 17, subject, however, to the proviso that when their number was 15 or more no vacancy should be filled without an Address from both Houses of Parliament. There matters remained for ten years. On the 16th June last year, I had to move in this House that, in pursuance of the provisions of that Act, two vacancies should be filled. The case was strong in 1910; it was far stronger in 1920; it is still stronger to-day. What has happened is that a vacancy has occurred by reason of the appointment of Mr. Justice A. T. Lawrence, as he was, to be Lord Chief Justice of England, and what is now proposed is not to authorise the appointment of an additional Judge, but only to fill up the vacancy so created; so that the number will still be, and will only be, the number authorised by the Statute of 1910.

May I just mention one or two figures as supporting my proposition that, if the case was strong in 1910, and stronger in 1920, it is stronger still to-day? The figure for the number of causes entered for trial in the King's Bench Division at the beginning of Michaelmas term last year was 973. At the beginning of Hilary term this year it was 1,124; at the beginning of Easter term this year it was 1,390. The number of causes entered in the King's Bench Division when this House adopted the Resolution in June last year was 709. In other words, the numbers are, roughly, twice as large.

I turn to one other matter, and one only. As the House is aware from the former discussion, no small part of the congestion of business in the Courts is due to the great increase in the number of petitions for divorce—an increase not only to be attributed to some consequences of the War, but also in no small measure, I have no doubt, to be attributed to the facilities which are given, and properly given, to poor persons to enable them to obtain the divorce to which they are entitled. At the beginning of Michaelmas term last year the number of petitions for divorce was 2,628. At the beginning of Hilary term this year it was 2,459; at the beginning of Easter term it was 2,320. The corresponding figure at the date of the Resolution for the appointment of additional judges in June of last year was 1,751. In other words, the case is stronger now than it was then, and it is stronger in spite of the exceptional efforts which have been and are being made to reduce the number of these pending causes. I would refer in a sentence to the public-spirited work of Lord Mersey, who, at his considerable age—in point of years at any rate—and at his own suggestion, has resumed work on the judicial bench.

I am conscious that when a proposal of this kind is made there is always someone who will refer to the length of the Long Vacation. I desire to anticipate what may be said upon that head by making a statement which I am authorised by the Lord Chancellor to make, namely, that he has under consideration a scheme whereby the facilities for trial during the Long Vacation may be increased for those litigants who desire such a trial. The matter was discussed with the Judges during the course of last year, and it will be further considered with them, so that any arrangement made may be put into force by the Long Vacation of this year. It is not every litigant who desires to have his cause tried during August, September, or in the early days of October. And so far as urgent matters are concerned, certain provisions already exist. It is the intention of the Lord Chancellor to increase those facilities. In these circumstances I submit that the case for this Resolution is overwhelming.

Captain THORPE

I rise not in any sense to embarrass the right hon. Gentleman, because I am in entire agreement with him, but to express a hope that this new Judge when appointed will be properly paid. My friends on my right spend a considerable amount of their time in propaganda, I do not say improperly, in demanding that the working man shall be paid a proper wage. That principle seems to be accepted, at any rate in their ranks, as applied to a man who works with his hands. My submission is that a man who works with his brains, and a man who is so assiduous and so constantly occupied as a High Court Judge in a position of great dignity, should have a proper salary. This is a question which obviously cannot be put forward by the Judge himself. It is one, perhaps, which can only be laid before the House by a member of the Bar who is so far junior that his own prospects of immediate emolument are a distant possibility. He has no personal object to serve. At present a puisne Judge is paid £5,000 a year. After contributing to the Treasury—and I think it is a fair assumption that these gentlemen pay a proper Income Tax return, though one could not say it of everybody—they are left with about £3,000 on which to preserve the rank and dignity of one of His Majesty's Judges. If one considers the fact that the cost of living has increased 140 per cent, since pre-War days, we are faced with the proposition that a Judge, who frequently in the course of his duties has to represent the King on circuit, who always has to occupy a certain social position, has to live on something less than £1,500 a year. An hon. Member says it is quite enough. In my submission, it is a great deal less than a business man would pay to his chief managing clerk. That has an immediate effect not only on the individual, but on the type of man that is procurable for this office. I would not for a minute suggest that the effect of paying a Judge a small salary has any effect on his administering justice. The training of the legal profession is such that by the time a gentleman is in a position to accept high judicial office he is entirely beyond a suggestion of that kind. There is no longer any inducement of a practical kind to a man who is making large emoluments as a leader at the Bar to accept this honour. To be one of His Majesty's Judges is one of the highest honours to which a man 'can aspire, and, when it means changing a salary of perhaps £30,000 or £40,000 a year inside the Bar—[HON. MEMBERS: "Oh, oh!"] Yes, every penny of which is well earned.


Where is the profiteer now?

Captain THORPE

And is paid by a willing public. If they object they can obtain counsel at a cheaper rate. To change that large salary for life at £5,000 a year limits the number of people who are prepared to give up the substance for the honour. The right hon. Gentleman will remember that this is a very earnest suggestion and a pious hope. I hope that in this matter my Labour friends will support me, inasmuch as in my part of the country they spend a considerable amount of time in advocating the principle that a man should get every penny that he earns and at the same time that he should earn every penny that he gets. That is the position of the Judges. No one can say that they are not hard-working. No one can say that the British judiciary, while the worst paid, I believe, in Europe— [An HON. MEMBER: "No!"]—very nearly. My own experience of foreign courts is limited. The hon. Member, who has had more experience, will perhaps enlighten me. The fact remains that the salary at present paid to a High Court Judge is totally inadequate, and at the first possible opportunity, not as an extravagance, but as a proper meed of justice, it ought to be raised to a fitting salary.


I do not think this Debate ought to finish without one word of congratulation to the Lord Chancellor on the prospects of our having cases carried on in the Long Vacation. That is a most hopeful proposal. As to the salaries of Judges, I hope that their salaries, like all fixed salaries, will have less taxation upon them before many years are over, and that they may be better. At the present time it is quite impossible for the Government or any body else to suggest increases of salary all round. [HON. MEMBERS: "Civil servants!"] Yes, but they would not get it now.


They got it the other day.


They would not have it voted to-day. It is a great improvement that there should be some work done in the Long Vacation, and the Lord Chancellor ought to have the thanks of hon. Members for the innovation.


The Attorney-General told us of the great arrears in the courts at the present time, arrears which mean an absolute denial of justice, but he has not satisfied the House that there are not other steps which ought to be taken, which have not been taken, to deal with this very serious situation. He has told us, and we welcome it, that arrangements are to be made for dealing with certain cases in the Long Vacation; but I suggest to him and to the House that the time has come when the House might definitely insist that the Long Vacation should be shortened by at least a fortnight. For years the Incorporated Law Society has been passing resolutions, not only in London but in the provinces, demanding that this should be done. I heard one of the most distinguished of my right hon. Friend's predecessors, Sir Edward Clarke, say that in his opinion the Long Vacation should be shortened from ten weeks to eight weeks. I think it is an anomaly at this time of day, and an anomaly which ought to be brought to an end, that any branch of the Civil Service should be allowed a vacation of no less than four months in the year. If the Attorney-General would say that the re-commendations of the Law Society, and, what is more important, the definite recommendations of the Royal Commission, which reported in 1913 in favour of shortening the Long Vacation from ten weeks to eight, would be, carried out, the House would with the greatest readiness support the Resolution. But at this time of day it does seem to me that he is undertaking a serious responsibility in not giving effect to the definite recommendations of the Royal Commission. We are entitled to something more definite than what he has told us to-night. Not only this House, but the country has made up its mind that four months' holidays is too long for any branch of the Civil Service to demand at present. It is difficult to ask miners, bricklayers, or anyone else to work longer hours and produce more when they see the most important class of civil servants taking what they believe to be an unduly long holiday.

Lieut.-Commander KENWORTHY

I am in no way connected with the legal profession and hope I shall never require the attentions of the additional Judge, but I believe that on the general ground of the congestion of business this appointment is justified. But I understand that this appointment is to fill the vacancy caused by the appointment as Lord Chief Justice of Mr. Justice Lawrence, and I think that this Motion should not be passed without a protest being made at the long delay in filling the very important post of Lord Chief Justice—a most undesirable delay—and at the way the personality of whoever was to fill the vacancy was discussed in the political papers. Naturally I make no criticism on the appointment of the distinguished judge who has been appointed. I am not in a position to criticise him in any way. I certainly have not the will. But the general impression has been created that the appointment has rested largely on political considerations. [HON. MEMBERS: "No!"] I say yes.


How does that matter arise on this Address? This relates to a, puisne judge, and not to the Lord Chief Justice.

Lieut.-Commander KENWORTHY

We were told by the learned Attorney-General that this was to fill a vacancy caused by the appointment of Lord Chief Justice Lawrence to his present high post. I wish to represent to the House that if Lord Chief Justice Lawrence had not been appointed this vacancy would not have been caused.


That is rather a strong hypothesis. Had that particular judge not been appointed, one of the other judges would have been appointed, and that would have led to exactly the same Address.

Lieut.-Commander KENWORTHY

I believe I am right in saying that the usual practice has been that the post of Lord Chief Justice has been filled in the past by one of the Law Officers of the Crown.


That is not in any way relevant to this Motion.

Lieut.-Commander KENWORTHY

If one of the Law Officers of the Crown had been appointed, this vacancy would not have been caused, and this Motion would have been unnecessary. I wish to protest against the savour of political considerations being attached in an altogether unprecedented way to the appointment to the second highest judicial post in the purview of His Majesty. I feel it was the duty, at any rate of one voice, to protest against any suspicion of political considerations in an appointment of this sort. I make the protest without any reflection on the present most distinguished holder of the office or on the Law Officers of the Crown, but I think the incident reflects on the Prime Minister, and that is the reason why I speak.


The hon. Gentleman's criticism is wholly irrelevant.


I should like to say a word in reply by way of removing, if I can, certain misapprehensions which appear to exist. One of my hon. and learned Friends cherishes the belief, it would seem, that the learned judges of the High Court enjoy four months' holiday in the year. That, really, is a startling proposition. In the more fortunate days when I was at the Bar some of us used to work about 46 weeks in the year. The learned judges worked then and, I believe, work still, about 40 weeks in the year. A second misapprehension was embodied in the statement that the figures of the causes I had mentioned were figures showing arrears. That is not the case. Exactly what part of those figures may truly be said to represent arrears, I do not know. But I do know that the main part of those figures included nothing of the kind. It is due to the considerable and persistent increase in the volume of business. With regard to the Long Vacation it was said that an undertaking ought to be given. I am sure my hon. and learned Friend does not think that it is open to me, by any act of mine, to curtail the Long Vacation. The statement which I was able to make on the authority of the Lord Chancellor, indicates a certain disposition in those who have the control of the matter, and I hope that that statement may prove satisfactory to the House. May I add that personally I agree entirely with observations that have been made as to the need of increasing the salaries of the learned judges of this High Court. I cannot help thinking that the time has fully come when those salaries should, in common fairness, be reconsidered, in the light of the experiences and the facts of to-day. Finally, the House will, I think, forgive me, if I do not pursue the remarks of the hon. and gallant Member who spoke last. I daresay he has heard—and, if he has not heard it perhaps he will forgive me if I bring to his mind—the story of the Master of an Oxford College who was lampooned in a book, that attracted some notice at the time, by a former undergraduate of his own college. A few months later they happened to meet, and the master, having ignored the writer for some time, at length condescended to observe to him: "I rather think that nine men out of ten could have written that book, but I am sure that eight men out of nine would not have written it."


If the House will bear with me I should like to make some observations on the subject of the shortening of the Long Vacation. My only excuse for rising is that I think no member of my profession has done so, with the exception of the learned Attorney-General, and much as I admire him, I think he has not dealt with this matter quite satisfactorily. He explained to the House that he had no power to shorten the Long Vacation. I do not know whether the power lies with the Attorney-General or with the Lord Chancellor, but I feel, if the Attorney-General had the power, he would exercise it. I am glad to see he approves of the suggestion. If, in fact, the power lies with the Lord Chancellor, then I little regret that the Noble and Learned Lord, in the information which he authorised the Attorney-General to give the House to-night, did not deal with the question which to the vast majority of lay minds, and I believe also to the majority of the minds of lawyers, is a question which should be dealt with. I have no right to speak on behalf of the profession of which I am a humble member, but speaking personally, and with some knowledge of the views of the profession, I believe the Bar would like to see the Long Vacation curtailed. I can honestly say, as one who is not altogether unoccupied, that at the end of two months one looks forward to the ordinary routine of one's daily work, and I never yet met any member of my profession who would not willingly support the proposal to shorten the Long Vacation. I realise that this does not touch the question which we are discussing, because even if you shorten the vacation by any reasonable length of time, you would still be compelled to appoint another puisne judge. At the same time, even if you added another two weeks to the legal working year, it would help to reduce those deplorable arrears in our lists, arrears which are often fraught with great anxiety, and which cost litigants great trouble and even expense. I am convinced myself that this is a reform which ought to be brought about, and I hope, if my right hon. and learned Friend approves of the suggestion that the Long Vacation should be shortened, he will vise his great influence, which I know he has with the Lord Chancellor, and endeavour to see that before long we have a definite proposal before us whereby we can shorten the vacation and reduce the most deplorable arrears with which we are faced more and more every year.


There is obviously only one test to apply to this Motion, and that is the condition of business in the courts. I think the whole House agrees that the Attorney-General has laid before us a condition of arrears of work in the courts which more than justifies the unanimous decision of this House in its support, but I should like to ask the Attorney-General whether, agreeing, as I know he does, with the old maxim that a delay of justice is often tantamount to a denial of justice, he could give us some assurance that the appointment of one puisne judge will be sufficient, and also whether he could give us the assurance that in future High Court judges will be, so far as is possible—and that it shall be in future more possible than it has seemed to be in the past—permitted to remain at the task to which they are appointed and confine themselves more and more to their judicial functions The country has watched, with growing amazement, the perpetual calling from their judicial functions of High Court judges to assist in tasks which do not strictly relate, although they are highly fitted for them, to their offices. I hope the Attorney-General will understand that my observations are entirely sympathetic when I ask whether he thinks that in moving this Motion he is adequately providing, not merely for the immediate needs but for the early prospects of the business of the courts, and if he can give us some assurance that in future our High Court judges are going to be limited in the discharge of public functions to the office to which they are appointed. As to the extra judge, if these arrears are to accumulate as they have been doing, if the learned Attorney General asks for the full number of 17 judges, those of us who believe in the instant and swift administration of justice will think it a small sum to pay.


The hon. Member says he asks me for an assurance, but he is really asking me both for an assurance and for a prediction. I cannot predict that the appointment of this one judge will be sufficient. I hope, as I believe, that it will be a great help, but more than that it is not possible to say. With regard to the appointment of learned judges of the High Court to what may be called extra-judicial duties, so far as I am aware, that employment of them—I do not think one can call it a practice—arose mainly, at any rate, out of the emergencies of the War, and I must remind the House that upon the last occasion when that was done, it was done at the request and, indeed, upon the demand of this House, namely, that a learned judge of the High Court should be invited to preside over what was then called the Defence of the Realm Losses Commission and is now called the War Compensation Court. I cannot give assurances, but this at least I can say, that, so far as any small influence of my own is concerned, it will always be given in the direction which is suggested.

Resolved, That an humble Address be presented to His Majesty representing that the state of business in the King's Bench Division of the High Court of Justice requires that a vacancy should be filled in the number of puisne Judges of the King's Bench Division, notwithstanding that the number of those Judges amounts to fifteen or upwards, and praying that His Majesty will be graciously pleased to fill such a vacancy accordingly in pursuance of The Supreme Court of Judicature Act. 1910. To be presented by Privy Councillors or Members of His Majesty's Household.