HC Deb 20 February 1948 vol 447 cc1551-8

Motion made, and Question proposed, "That the Bill be now read a Second time."—[Mr. Ede.]

Mr. Manningham-Buller (Daventry)

I thought that we should have a few words of explanation from the Home Secretary in moving this Bill, or from another Minister, but as the Attorney-General has just come into the House perhaps the House will give me leave to make a few observations after he has spoken.

3.5 p.m.

The Attorney-General (Sir Hartley Shawcross)

I apologise to the House for being late, but other matters proceeded rather more rapidly than my advisers anticipated. This is a modest Bill; indeed, there may be some who will think that it is rather a stop-gap Measure. It is intended to assist the Court of Appeal in dealing with the increasingly large number of appeals which are being set down before it. It is, I hope, a non-controversial Measure.

The Court of Appeal is normally presided over by the Master of the Rolls—I say "normally" because, technically and strictly, the Lord Chancellor is the President. That court is composed of eight Lords Justice of Appeal and, in practice, it falls almost entirely on them to man the three divisions of the court each of which, under the existing law—the Judicature Act, 1902—is composed of three judges. Very often, in practice, it is not possible to constitute the three courts; only two of them are able to sit, because, as Members know, it frequently happens that the Master of the Rolls, or another Lord Justice of Appeal, is asked to assist in the discharge of other important public duties. Lord Greene who, I suppose, is the most heavily burdened of all our judicial officers, presided, as the House will remember, over the arbitration to settle the amount of compensation to be awarded in connection with the nationalisation of the coal industry, and Lord Justice Cohen is now presiding over the Royal Commission on Awards to Inventors. In addition to the Lords Justice of Appeal, however, certain holders of other judicial offices are qualified to sit and, occasionally—not, I think, very often—they might be able to constitute an additional Division of the Court of Appeal if that court were entitled to sit in more Divisions than three. Lords of Appeal-in-Ordinary—the Law Lords—may sit; the Lord Chief Justice is qualified to sit; the President of the Probate, Divorce and Admiralty Division is entitled to sit; and judges of the High Court are entitled to sit. In practice, the services of these gentlemen are not normally available, because they are fully occupied with their own official duties.

It does however occasionally happen that their engagements elsewhere would permit them to help in the work of the Court of Appeal. On those occasions, it may be possible, without in any way diminishing the notably high standard and quality of the Court, to enable it to sit in four divisions, each constituted of one or two of the ordinary Lords Justice of Appeal and containing, perhaps, in one, the Lord Chief Justice, perhaps, in another, the President, perhaps, in a third, one of the Law Lords, and, perhaps, in the fourth, one of the judges of the High Court. A week or two, even if only a week or two, of assistance of that kind in the courts in each term might be of very great value in disposing of the list. At present the legal limitation of the number of divisions in which the court may sit to three makes that impossible to accomplish. As I indicated to the House, that limitation was imposed in 1902. The congestion of business in the Court of Appeal is now such that it is essential in the interests of the administration of justice that the limitation should be raised.

In 1947, the number of appeals set down for hearing was 675. That was a record up to that date, but I think that there is every indication that the number that will be set down in the course of the coming year is likely to be higher. That has resulted not only in delay, but also—and this is a consideration which we would be wrong to lose sight of—in an intolerable burden on the judges of the court itself. In 1938, the number of Lords Justice of Appeal was increased by three, from five to eight. One of the express purposes of that increase was to relieve the court of some of the strain under which it had been working up to that time, and to give its members an opportunity of preparing and considering judgments in important cases which they thought it inexpedient to deliver immediately, and in which they reserved their decisions.

These objects have been entirely frustrated by the increase in the number of appeals, and members of the court now never have time to take off court in which to prepare their considered judgments. Not only that, but even by working at the highest pressure the court is unable to dispose of its list with the expedition which justice demands. In the course of the present term—I think these are the right figures to date—74 appeals have been dealt with and 83 have been set down during the like period, with the result that the number of appeals coming up is exceeding the rate at which the appeals are being disposed of. We hope that in these circumstances, the Bill may help a little. I do not pretend that it is likely to help very much. It does nothing, of course, and does not pretend to do anything, to alter the position in which finality can only be reached after proceedings before three, and in some cases, as in Revenue cases, before four different tribunals. Speaking personally, I think that this is a matter in which our present arrangements are open to grave criticism. That is a matter which will receive attention by the Committee established under Lord Justice Evershed.

Again, this Bill does not do anything to increase the number of ordinary judges of the court—the Lords Justice of Appeal. It relies simply upon the occasional assistance of those other ex officio judges. Experience will show whether it is right or not, but we are hoping that the present spate of appeals is abnormal. There are, for instance, ten times as many divorce appeals as there were about ten years ago, and it may be that that will turn out to be an abnormal situation. At the moment there are sufficient of them to keep one division of the court fully occupied for the whole of the term. If, unfortunately, it turns out that appeals continue at this rate we shall have to consider more drastic remedies, but we felt it would be hardly convenient to embark on those before the Committees which are at pre- sent considering all our judicial procedure including the multiplicity of appeals, have been able to make their reports.

3.17 p.m.

Mr. Manningham-Buller (Daventry)

I should like, with the leave of the House, to make a few observations on this Measure, and at the outset to assure the right hon. and learned Gentleman that we have no objection to the Bill. It is intended to facilitate the disposal of pending appeals, and that is an object which we should like to see accomplished. Something like six months must now elapse between the setting down and giving notice of appeal and the hearing of that appeal. It may be that in many cases it is longer, but it really is a deplorable state of affairs that litigants have to wait so long with anxiety before the final determination of the issue.

I want to make one or two observations with regard to this court. This fourth court may be constituted from judges drawn from other sources, and the right hon. and learned Gentleman has indicated the wide field from which judges may be directed to the Court of Appeal. It would be the practice I imagine in the normal case, as has been the practice in the past, to constitute the fourth court—in the past the third court—by calling on judges from the King's Bench, Probate Divorce and Admiralty Division and the Chancery Division to make up the required numbers. If the determination of appeals is going to be accelerated by this fourth court and the fourth court is normally going to be constituted as I have said, it is going to retard the hearing of actions in the first place.

I hope the right hon. and learned Gentleman will bear in mind not only the many obligations which His Majesty's judges are now called upon to perform and fulfil independently of their judicial functions, but also the need to provide facilities, in spite of the existence of this fourth court, for the hearing of trials in London, and in particular, in the King's Bench Division, because when judges are on circuit and if the fourth court is still sitting, it may well be—as I think it has been in the past—that very few trials will be determined in the High Court of justice. While welcoming this Measure, I would ask the right hon. and learned Gentleman to bear in mind the advisability of keeping a very close watch on it, so that by facilitating the hearing of appeals we shall not retard unduly the hearing of actions.

The right hon. and learned Gentleman made some observations about the possibility of drastic remedies. I do not know what was in his mind, and I have no desire to press him upon that matter, but it is a question worthy of investigation and inquiry why the number of appeals has so largely increased. It is true to say that particularly in the Divorce Division appeals have become more fashionable—if that is quite the right word to use—and also that appeals from decisions in the Divorce Division take almost as long in the Court of Appeal as they do in the court of first instance, if not longer. That is a factor which must be taken into account.

Bearing in mind the shortage in which this may result in judges for the King's Bench Division either for circuit work or for remaining in London to determine cases, I hope that we may get an assurance—I would make it clear that I am not seeking any invitation—from the Attorney-General that there will be no reluctance to appoint Commissioners to fill vacancies which have been created temporarily by the removal, for instance, of a King's Bench judge to the Court of Appeal. In the belief that the proposal is likely to effect a considerable improvement in the administration of justice we will support the Second Reading of the Bill, while hoping that it will not be necessary for a fourth Court of Appeal to sit for very long.

3.21 p.m.

Mr. Turner-Samuels (Gloucester)

On the face of it, the Bill seeks to effect something of very small dimensions, to create a fourth division of the Court of Appeal. It involves, however, very much more serious implications, one of which is the recruiting of judges of first instance from their courts to the Court of Appeal in order to man it with the numbers required by the Divisions of that Court which are sitting. Those who are familiar with courts will know that quite frequently, even when only two courts have been sitting, a learned judge either from the Chancery Division or from the King's Division has been sitting there; a fortiori, when there are four divisions, that is likely to become more noticeable than ever. Recently, the Chancery Division has been judicially fully manned again but difficulties are quite likely to be encountered there if one or two Chancery judges are being taken from that Division for hearing appeals in the Court of Appeal. Therefore, whereas, on the one hand, the strength of the Chancery Division has been made up, that strength is reduced by using the services of some of its judges in the Court of Appeal.

I am certain I am pushing at an open door so far as the Attorney-General is concerned when I say that it is important to bear in mind that some more settled arrangement should be made to deal with the business of the courts and to avoid this taking away of judges from their own courts. I would make a suggestion with the same modest purpose as the hon. and learned Member for Daventry (Mr. Manningham-Buller); the temporary difficulty of the congestion of business in the courts should be met by the appointment of Commissioners for the King's Bench Division. I cannot see why Commissioners should be appointed for circuit, for instance, and not appointed for the courts in London. They would discharge precisely the same judicial business. When appointed for Assizes, Commissioners take criminal business on one circuit and civil business on another circuit. The two put together amount to precisely the work that the judge of the King's Bench is doing when he is sitting either on the civil side or in the Court of Criminal Appeal. Certainly, it is most important that judges ought not to be taken from their judicial functions in order to sit upon or preside over Royal Commissions and inquiries, either by the Home Office or any other Ministry. Especially under present conditions members of the Court of Appeal should not be so taken from the work of the Court of Appeal. I do not say there may not be special cases where public confidence may call for a Lord justice of Appeal or a judge to be appointed, but, with such exceptions, it should be the rule not to take judges away from the courts and their judicial work.

With regard to the business of the courts, as the Attorney-General said, more cases are being entered than are being disposed of. I know that at one point last month whereas 20 appeals had been heard 54 cases were in the same period entered. That is a very serious disparity to make up with the number of divorce appeals increasing all the time. I do not see any hope in the immediate future of any substantial diminution of the number of divorce cases. On the contrary, they are bound to increase. It is very essential therefore, that the court should not only be kept at full judicial strength, and that this fourth division should be created. I welcome the Bill and I hope it will work adequately under present conditions. In conclusion, I think that the courts are undermanned; that the judges are underpaid, and that there might well have to be an increase in the number of judges.

3.27 p.m.

Mr. Scholefield Allen (Crewe)

We all hope that the congestion in the Court of Appeal will soon pass away. There has been a colossal number of divorce cases heard last year, no less than 54,410, and that is bound to increase the number of appeals to the Court of Appeal. There are now pending, I understand, 76 divorce appeals and, as the learned Attorney-General has said, that would keep one division of the Court of Appeal active for a whole term. The Attorney-General indicated that he might have to come to the House with a more drastic remedy. He did not express what the remedy was but I presume he meant that, if this is a continuing difficulty, we shall have to have more Lords Justices of Appeal. It is not desirable, in the interest of justice, that it should be administered in a catch-as-catch-can manner. The Court of Appeal ought to be manned by Lords Justices of Appeal, except in special circumstances. It is not desirable that we should take judges away from the work of of the King's Bench Division or the Chancery Division. It is undesirable from every point of view. It is certainly undesirable to appoint Commissioners to sit in the King's Bench Division in London, as suggested by the hon. and learned Member for Gloucester (Mr. Turner Samuels). If, in fact, we cannot discharge justice in this country adequately with the number of judges who now sit, we must have more judges, and not appoint Commissioners. With great respect to Commissioners, I believe that the ordinary litigant would desire that his case should be heard by one of His Majesty's judges, and not by a Commissioner.

Mr. Turner-Samuels

Suppose the congestion was only temporary and only lasted a matter of months?

Mr. Scholefield Allen

As long as it is a temporary matter, and figures show that it is capable of being remedied in 12 or 18 months, we can support the Bill. I ventured to intervene to say that I hope it is only a temporary expedient, and that the Government will not hestitate to take the drastic remedy of appointing more Lords Justices of Appeal, and more judges if, by and large, and in a reasonably short time, appellants are not able to have their cases heard by His Majesty's Judges of Appeal.

Question put, and agreed to.

Bill accordingly read a Second time.

Bill committed to a Committee of the whole House for Monday next.—[Mr. G. Wallace.]