Clause 3.—(ADDITIONAL JUDGES OF HIGH COURT IN ENGLAND.) (Hansard, 22 July 1965)

The Deputy-Chairman
The next Amendment selected is No. 22, Clause 3, in page 2, line 11, leave out "sixty-three" and add "fifty-seven", and with it we can discuss Amendment No. 21, Clause 3, in page 2, line 11, leave out "sixty-three" and add "sixty", and Amendment No. 67, Schedule 2, in page 4, line 32, leave out "sixty-three" and insert "sixty".

§ Mr. Arthur Lewis
This is the reduction in the number of judges. What I have in mind here is to ascertain from the Attorney-General on what basis he feels that this has been correctly assessed.

The Deputy-Chairman
I apologise to the Committee, I should have called Amendment No. 21, and with it we can discuss Amendments No. 22 and 67.

§ Mr. Abse
I beg to move, Amendment No. 21, Clause 3, in page 2, line 11, to leave out "sixty-three" and to add "sixty".
This Amendment and the two being discussed with it form the most important group of Amendments to the Bill, and I hope that by the time that I have concluded my plea to the Attorney-General I shall not have occasion to continue to 2076 sound the sour note which he correctly said was creeping into my speeches.
I regard it as a sad feature of the Bill that this intended increase in the number of judges is merely an incitement to inefficiency and an encouragement to refrain from thinking out improvements in the administration of justice. It is clear that at this time we should be considering very seriously whether these extra judges are needed, whether certain changes can be made to rationalise the number of judges employed in the administration of justice, and also whether we are going to behave differently from businessmen and factory owners who, when there is a need for economy, do not think out ways of becoming more efficient.
The Amendment goes to the root of the matter. I regard it as a sad feature that we should be asked by a reforming Attorney-General, and by a reforming Lord Chancellor, to confirm the existing structure of the courts, with an increased number of judges. Perhaps I might illustrate my point by referring to a short essay which was published about two years ago. The point was pithily and succinctly made by an author of great renown. He put forward a suggestion for cutting down the number of judges. Dealing with the appellate jurisdiction of the House of Lords, he said that as, under the Judicature Act, 1873, the Court of Appeal was to be the final Court of Appeal, and as so few cases reached the House of Lords and it had always been important that the Court of Appeal should be strong, the appellate jurisdiction of the House of Lords, and the judges involved, should be abolished. I presume that the Attorney-General recognises his own words. They were brave words, and were the words not only of the Attorney-General but of the Lord Chancellor, though neither at that time held his present high office.
Those of us who knew we were in a party that was crusading for law reform were greatly encouraged by such distinguished persons categorically saying that we should get rid of the appellate jurisdiction of the House of Lords. It would be a great saving to dispense with the services of nine Law Lords, even on the proposals made in the Bill. The Attorney-General put forward the view that one appeal is enough if the appellate court is 2077 sufficiently strong, as the Court of Appeal would be if it had the combined strength of both tribunals.

§ Sir J. Hobson
On a point of order. I thought that the Clause under discussion was dealing with the High Court. The Lords of Appeal in Ordinary were never part of the High Court. Is it in order to discuss them?

The Deputy-Chairman
No, it is not in order.

§ Mr. Abse
With great respect, I am seeking to see how we can rationalise the number of judges. The division in which they are employed is irrelevant. I am suggesting that we should accept the suggestion that was made by the Attorney-General and the Lord Chancellor.

§ Mr. Hogg
Further to that point of order. As I understand the Amendments, the proposal is to reduce the number from 63 to 60 or 57, according to which of the two Amendments we are discussing. With respect to the hon. Gentleman's argument, I cannot see how it can be in order to suggest that the appellate jurisdiction of the House of Lords should be abolished, simply because the effect might be to render a smaller number unnecessary. I respectfully submit that the only arguments which are relevant to these Amendments are those which suggest that 57 or 60 is a better number than 63.

The Deputy-Chairman
The right hon. and learned Gentleman is completely right. We are discussing only the number of judges. We cannot discuss the reform of the judicature.

§ Mr. Abse
I cannot put forward that argument, and it would be quite wrong for me, despite the attempt to contain me by the right hon. and learned Gentleman, who apparently finds my arguments embarrassing—

The Deputy-Chairman
Order. Order. The hon. Gentleman must remember that his proposal would entail legislation which is outside the scope of the present Bill. He must confine himself to the number of judges.

§ Mr. Abse
Yes; and in order to do that I suggest that we have to examine the arguments which the Attorney-General put forward during the Second 2078 Reading of the Bill as to why it was that there should be an increase in the number of judges. To keep within the rules of order, I will direct my attention to the reasons why he thinks there should be an increase, and why I do not share that view.
It will be recalled that he gave three main causes for the need to increase the number. The first one was, the continuing increase in criminal business arising unhappily from the continuing increase in crime".—[OFFICIAL REPORT, 15th July 1965; Vol. 716, c. 649.] Are we to say, when we have a reforming Lord Chancellor and a reforming Attorney, that when we have an increase in crime, to take the first point made by the Attorney-General as a justification for the increase, the only thing that we can and must do is to increase the number of judges? Is that the way in which this is intended to be dealt with? We know quite well that there are many other ways and I would have thought that it was our duty to consider other methods. When the Attorney-General put forward this, had he considered other methods?
3.30 a.m.
On Second Reading, my right hon. and learned Friend referred to the Streatfeild Report of some years ago. It considered how trials could be speeded up. For example, it considered whether there should be more Crown courts and whether that would mean that cases would be dealt with more expeditiously and whether judges could sit longer instead of having the present circuit system with all the difficulties which it entails. The Central Criminal Court and the London Sessions are continuously sitting criminal courts presided over by full-time salaried judges, but outside London, Manchester and Liverpool such continuously sitting criminal courts are unknown.
As the Streatfeild Committee conceded that continuously sitting Crown courts would not only provide speedier trials but more judge time for the civil assizes, we are entitled to ask whether there was not a sloppy approach to this question—"We have more work; let us get more judges"—or whether someone applied his intelligence—and there is no lack of that among our Law Officers—to consider 2079 whether we should reconsider the Streatfeild Report at this time, since even its recommendation for not extending the Crown courts was clearly made at that moment of time. It was only by a slight balance that the Streatfeild Committee concluded that Crown courts should not be extended and it emphasised that that was its view at that time and that circumstances might alter such a view.
We should, therefore, examine whether we can rationalise the number of judges and get more cases going through Crown courts by having judges work longer.

§ Mr. Hogg
On a point of order. As the abolition of the appellate jurisdiction of the House of Lords is irrelevant, is it not equally irrelevant to discuss the contents of the Streatfeild Report? Is not the Amendment concerned only with the relative merits of two suggested numbers of puisne judges?

§ Mr. Abse
Further to that point of order. I have limited myself to High Court judges, but if we are propsing that there should be a certain number of High Court judges, surely I have to show how we can manage with that number of judges. This is not a matter of stating a number and leaving it at that. I am deploying arguments to demonstrate that fewer judges would be needed if the changes which we propose were adopted. When we are asked to increase the salaries and the number of judges, it would be quite wrong, especially in Committee, to be debarred from showing how what we propose could be done and how it would be more efficient than what is proposed and make it unnecessary to have the number of judges proposed.

The Deputy-Chairman
The hon. Gentleman must apply his argument to the actual number of judges. He cannot put forward reductions which would require legislation, because that would fall outside the scope of the Bill.

§ Mr. Paget
Further to that point of order. If the Government say, "We want 63 judges" and the Amendment says, "You can do it with 60", surely it is in order for the mover of the Amendment to say, "I will show you how to do it with 60". Is not that what my hon. Friend is doing?

The Deputy-Chairman
It must be by administrative action and not by a method which requires legislation.

§ Mr. Abse
It may be—perhaps my right hon. and learned Friend the Attorney-General will tell us—that the existing Crown Court system could be extended. There exist the powers which established the courts in Manchester and Liverpool. I am, therefore, talking within the terms which you specify, Sir Samuel.
It would be a curious state of affairs if, when presented, as we are, with the suggestion that we have to increase the number of judges, we should be debarred in a debate of this kind from giving firm suggestions about how we can reduce the numbers. This is not a mathematical study. We are not naming numbers for their own sake. It would be a disrespect to the Committee if suddenly one produced a figure without being able to give weight of argument suggesting how or why we come to the conclusion that fewer judges are required.
I turn from that point since it disturbs the right hon. and learned Member for St. Marylebone (Mr. Hogg), to whose extravagant speeches we have listened earlier. We could extend by administrative action the flying squads, as they were termed, which were recommended by the Streatfeild Report. That Report recommended that we should have flying squads of judges who, when there was pressure of work, could go out and could act in a way which would mean that they could descend, so to speak, in areas where there was a great deal of pressure of work.
When that recommendation has been made and has, I understand, been deployed in endeavouring to deal with the large number of cases that are coming before the courts, we are entitled to ask how the flying squads operate. Could not they be deployed a little more? Has consideration been given to the fact that judges might work a little longer and that the long vacation, which causes so much of the trouble, could be so arranged that more judges could go out in September as a flying squad in greater numbers?
The Streatfeild Report recommended that a small number of judges—three—should be available in the latter half of 2081 September to act as a flying squad and so see to it that not everything was held up during the whole of August and September. That throws a burden upon judges. It may mean that more of them will have to work a litter harder.
That might not be such a bad thing. I do not underestimate the quality, character and weight of the judges' work. I certainly take the point which has been made that their work does not consist only of the hours they sit in court. When, however, we are asked for more judges, we are entitled to ask whether the Government have considered the manner and methods by which we could speed up the administration of justice. We are the only civilised country in the world where it is not possible for it to be known in any case any length of time beforehand when it will be heard.
It is, therefore, no encouragement to those who appreciate the zeal and the attention that exists for reform when there is no suggestion that there is to be a speed-up or a deployment on a wider scale of some of the suggestions made within the Streatfeild Report which might prevent the necessity for increasing the number of judges. Are there not other ways? For example, could we not see to it that, instead of jealousy preserving the jurisdiction of the judges—who are so jealous of preserving so many offences which come to them and them alone—instead of merely deploring the weight of criminal work which has to go to the the assizes, ask, as the Streatfeild Report began to ask, whether more offences should be taken in quarter sessions—[HON. MEMBERS: "Legislation."]

The Deputy-Chairman
The hon. Gentleman is again proposing legislation, and that is outside the scope of the Bill.

§ Mr. W. Howie (Luton)
Behave yourself.

§ Mr. Abse
If my hon. Friend the Member for Luton (Mr. Howie) has anything to say, whether from the Front Bench or the back benches, he had better get to his feet and say it.

§ Mr. Paget
On a point of order. Is it in order for an hon. Member to turn round and usurp your function, Sir Samuel, and tell another hon. Member to behave himself?

The Deputy-Chairman
I have already called the hon. Member to order.

§ Mr. Abse
What we have presented to us is a sloppy bit of work, because it has come, not as some of us think it should come, as part of a package deal. We have heard of package deals in relation to other matters. If there is to be any support for the feeling that there is genuine anxiety to increase the number of judges, we should have some proposals from the Attorney-General as to how judges intend to increase their productivity. I regard it as highly unfortunate that we have merely a bare demand on the basis of their existing work, with no suggestion about how we could cut down their work.
Occasionally, we hear glimmers. For example, we had one from the Attorney-General, who moved on from speaking about the pressure of criminal work—giving no suggestion as to how it could be dealt with in any other way than by judges—to telling us, with considerable concern, about the increase in the number of divorces. This is very sad. He accompanied his comments in this case by telling us how unfortunate it was that county court judges had to be used as commissioners because there were so many divorces and proposed seriously that this was a good reason for increasing the number of divorce judges. I am pleased to see that, in a Parliamentary reply—I presume that the right hand knows what the left hand is doing—the Minister without Portfolio said that it is intended that certain divorce jurisdiction should be given to the county court judges.
I confess that I find it odd that, at a time when the Attorney-General is deploying arguments that, by implication, the quality and calibre of our county court judges, who are metamorphosed temporarily into commissioners, may be a cause for complaint and that therefore we had better get more High Court judges, it is intended for judges of the county court to deal in some measure with divorce cases. If we have more divorce cases—as, unhappily, projection appears to make likely—is that all that will be done, that we will be asked for more High Court judges? Is no other idea to be presented, or are the jealous vested interests of the judges to be maintained? Are they prepared to look 2083 seriously at revolutionising the administration of justice in this country?
If we are not prepared to adopt a reforming attitude as administrators of justice, we shall attract the same type of opprobrium as is rightly attracted by sluggish manufacturers who fail to adapt themselves to a changing world. The Attorney-General argues that there are difficulties and that there are no alternatives.
3.45 a.m.
The next argument presented, when the Attorney-General has finished drawing attention to the increased number of divorces, is the fact of the increased number of cases involving wards of court. I recall that when this matter came before Parliament recently it excited the interest of the right hon. and learned Member for St. Marylebone (Mr. Hogg). Has no consideration been given to the many views which have been expressed about this subject being an inappropriate jurisdiction for judges, that wards of court—

The Deputy-Chairman
Order. The hon. Gentleman is again indicating legislation.

§ Mr. Abse
When legislation was coming forward involving increased salaries and an increased number of judges, it would certainly have gained more respect among my hon. Friends if, at the same time, it contained proposals for reforming the administration of justice in manners and methods, in a way that would not have necessitated merely an increase in the number of judges.
I move the Amendment because I do not think that it is the function of a reforming Administration to take this action without asking themselves—while they ask the country not to ask for more and not to employ excessive labour without at the same time considering how they can be efficient—how they can be more efficient.
It is no use lawyers, who have a vested interest in the administration of the Bill, seeking to persuade the Committee that all is the best possible, that nothing can be improved and that all is so well that we need merely give more money and appoint more and more judges. That is not good enough. The motivation 2084 behind my opposition to the Bill is not only founded on objections to these massive increases in salary but because it is the type of Measure which I did not exject would come from a reforming Administration. I say that because the Bill has come barren of suggestions as to how we can change and rationalise the law in a way that would not cause extra burdens to be placed on the community.
As it stands, the Clause protects restrictive practices in the fullest sense of the term. It preserves jurisdiction for particular people. It means that it prevents any distribution of the load. It means that we ossify all that is already in existence without considering how, in a fluid and elastic way, we may not have to make the demands that are made by the Bill on the public purse. I hope that the Attorney-General will not regard this as a sour comment but as a comment coming from someone who is deeply concerned about the Bill, which, as drafted, asks a lot of the community but gives precious little to it.

§ The Attorney-General
Had we world enough and time, and were it in order to do so, this would be a great theme—the theme of law reform. I do not know whether I will ever convince my hon. Friend the Member for Pontypool (Mr. Abse) if I repeat that we are devotedly assiduously applying ourselves to the overhauling of the whole range of the administration of justice—criminal, civil and divorce as well. It is not a matter that can be disclosed at this stage. We have been in office for nine months. We have already taken major measures in law reform and in regard to the administration of justice.
Other major measures have also been carried out in recent years. In particular, there were the changes that followed the Streatfeild Committee, and many others are on the way. I am not in a position to disclose at this stage the immediate steps that will be vouchsafed to my hon. Friend before very long, and also, perhaps, to colleagues in this House who may have more confidence in their colleagues on the Front Bench than he has.
It is all very well for my hon. Friend to utter these honeyed words constantly, but constantly to suggest that nothing is being done does no credit to my hon. Friend's confidence in the Lord Chancellor or in myself as people who are, in 2085 one voice, described as reformers and, in the other voice impliedly described as doing absolutely nothing. I am reaching the point where this is becoming intolerable, and perhaps my hon. Friend will forgive me for saying this to him quite frankly. If he wants to say something, let him say it.

§ Mr. Abse
May I ask my right hon. and learned Friend why a Bill of this kind cannot be postponed in order to let us see the results of some of the things that are happening? This is a Bill for which there is no urgency or necessity, and one for which no one is clamouring. We would then have proof of the reforming zeal of which my right hon. and learned Friend speaks.

§ The Attorney-General
The way in which my hon. Friend finds himself capable of saying that his opinion is that of the generality suggests to me that he is losing both his sense of humour and his sense of proportion. I want the Committee to know that these matters of law reform are urgently being pursued, and the fruits of our present labours will be disclosed to the House before very long. I am not able to say more about that now—indeed, as legislation is involved, I would be out of order to do so.
As to my hon. Friend's suggestions about reforms in the criminal law, most active consideration was given by the Streatfeild Committee to the possibility of the extension of the Crown courts. He knows perfectly well the limitations that were so clearly pointed out by the Streatfeild Committee's Reports. It is quite true that consideration can be given, and is being given, to a radical change in the machinery of justice in England resulting from the concentration of criminal and civil business in the big centres of population, so that the judges who deal with both civil and criminal justice would be sufficiently numerous not to become isolated, as judges in Crown courts tend to do. But we cannot have such a system without the most careful examination of all the problems of principle and practice that are involved.
I do not suppose it gives my hon. Friend any comfort when I assure him that this sort of study is being conducted. When he speaks, if I may say so, in excessively facile terms of the divorce 2086 situation, the fact is that to transfer undefended divorces to the county courts would hardly have any effect at all on the demands on the time of the High Court judges at all, because they never, or hardly ever, try undefended divorces. The undefended divorce is tried in the county court by the divorce commissioners. I am not aware whether he recognises that it has been suggested that County Courts should try defended cases. There is a body of opinion thinking along those lines; there was the Morton Report, and other Reports, but if that happened it would represent a revolutionary move and bring chaos to the county courts.
So, my hon. Friend must not say that these things have not been thought about. They have, but so have the difficulties which they would raise; but, so far as undefended cases in the county courts are concerned, the matter is under active consideration. We are also concerned about the immense cost of divorce and this is a matter obviously receiving urgent consideration. The problem we have to face is that the considerable increase in crime and in divorce work, and pressure on the Chancery Division, calls for immediate measures; long-term measures, calling for careful thought. My noble Friend is actively engaged on them at present, but for the moment we need more judges in the Queen's Bench and other divisions. I assure the Committee that no new appointment will be made without consideration of its necessity by the Lord Chancellor, and each appointment will have to have the approval of the Treasury; and I can also assure the Committee that, from my personal knowledge of my right hon. Friend the Chief Secretary, it is unlikely that any appointment will be made unless the need for it is proved to be absolutely essential.

§ Mr. Arthur Lewis
My Amendment is not one which I intend to put to the vote. It is intended to be a probing Amendment in order that the Committee shall have an explanation of why the number of High Court judges shall be increased from fifty-six to sixty-three. I do not think that my right hon. and learned Friend the Attorney-General has adduced enough explanation about the work which the judges are already doing to substantiate the case for this increase of seven in the number of such judges.
2087 Could he give some information about the hours which the existing judges work; the weeks or months in each year during which they work, and whether they are all fully engaged? What is the necessity for this extra seven? I should have thought that the right hon. and learned Member for St. Marylebone (Mr. Hogg) and other hon. Members opposite would have supported this Amendment. I well remember that on many issues which have come before the House those right hon. and hon. Members opposite who are present at the moment have attacked the Government for alleged wasteful expenditure, alleged wasteful misuse of people who had been appointed to various posts because their object then was to cut Government expenditure—unnecessary expenditure—and to see that there was not a proliferation of appointments.
If the right hon. and learned Member for St. Marylebone was really interested in cutting down Government expenditure, then here is a way of doing it; because these seven extra judges, if and when they are appointed—and some hon. Members of the House will no doubt get some of the appointments—will have to be paid. They will be paid at enhanced rates, and my hon. Friends and I have a duty and a right to speak on this matter because we have tried to get the Government to spend money for really necessary purposes, such as the needs of local authorities. We have always been told that the money is not there and that the Government cannot do these things because they cannot spare the money. If the Government did not appoint these seven extra judges, there would be a saving of the equivalent of their salaries and expenses. [Interruption.] A Whip on the Government Front Bench keeps making interjections. If he would care to get up and make an interjection which I can hear clearly, I can deal with it, but these interruptions are disconcerting.

§ Mr. Howie
I said "Hear, hear". I hope that did not offend my hon. Friend.

§ Mr. Lewis
I would rather that my hon. Friend made an interjection so that I could deal with it.

§ Mr. Howie
I made it and my hon. Friend heard it.

The Deputy-Chairman
Order. We would make better progress if the hon. Member did not continue to make interjections.

§ Mr. Lewis
I have been trying to get the Government to do various things which I admit would cost money. For example, I have asked that there should be lower rates of interest in my constituency. The Government say that the money is not available. If the Attorney-General accepted this Amendment there would not be this increase in Government expenditure and the money saved could be spent on a worthy cause. I hoped that the Attorney-General would say that the judges are having to stay up all night working extra hours, or that they were working at week-ends, but he did not give any explanation. All he said was that seven extra judges were needed. If he gave facts and figures to show that they are necessary I would not press my Amendment.

§ Mr. Paget
I had not intended to intervene on this Amendment and I would not have done so but for the reproof by my right hon. and learned Friend the Attorney-General to my hon. Friend the Member for Pontypool (Mr. Abse). That led me to the conclusion that my right hon. and learned Friend had not understood or appreciated what my hon. Friend said. He and I am are not saying that the Government are not considering law reform. Of course they are; the Minister without Portfolio was appointed for that very purpose. We are saying that the Government exhort everyone else to link wage increases with productivity increases and it is not contended that the administration of justice is sufficiently organised. My right hon. and learned Friend and the Lord Chancellor are on record as having expressed their opinion that it is not. It needs reorganising and I understand that it is being reorganised. When those proposals come forward that surely will the time for wage increases to come forward, if they are necessary, also. We are simply asking that the Government should themselves link wage increases to productivity increases, which they ask everyone else to do. When my hon. Friend explained that, the Attorney-General ought not to have reproved him.

§ Mr. Arthur Lewis
Is the Attorney-General not to deal with the new points we have put to him?

§ The Attorney-General
I was not aware that there were any new points raised. I explained on Second Reading how it was that the immense increase in crime and criminal work, the immense increase in divorce work and in the work of the Chancery Division, necessitated more judges. If my hon. Friend want to know judges' hours of work, if it is any help to him, a court day is from 10.30 to 4.30.
At assizes it is usually necessary to sit till half-past five or six o'clock for the disposal of the lists. I do not know what experience my hon. Friend has of being in court, but judicial work requires complete concentration and is extremely tiring. He ought to know—indeed, I inform him—that, in addition to sitting in court, judges have to write their judgments, prepare summings-up, read depositions at assizes of transcripts of proceedings which are subject to appeal in the Court of Appeal and in the Court of Criminal Appeal. They are immensely busy and hard-worked men and it is a pretty exhausting profession.

The Deputy-Chairman
I am of the opinion that the principle of the Clause has been adequately discussed on the Amendment. I shall therefore put the Question, "That the Clause stand part of the Bill" forthwith.