§ Mr. Peter Archer (Warley, West)
I am grateful, despite the hour, for the opportunity to air this issue. I am also grateful to my hon. Friends, and to the Solicitor-General and his hon. Friends, for their long vigil. This problem is causing some disquiet and the debate may enable some misunderstandings to be resolved.
At the Lord Mayor's dinner for the judiciary, the Lord Chief Justice said that the Government had failed to respond to repeated calls for more High Court judges, particularly in the Queen's bench, and that the system was near breaking point. The Lord Chancellor, in what was widely taken to be a reply on the launching of the court services annual report, announced that he had no plans to appoint more Queen's bench judges. It was reported in The Guardian on 17 July that judges were being asked to complete time sheets to measure their output, in order to reinforce the case for more judges.
On 15 July the matter was raised in another place, in the form of a question from my noble Friend Lord Mishcon. The Lord Chancellor said that, while waiting times for some types of case were considerably longer than he would wish, there had been some reductions. With respect, however, that is not the real cause of concern. I understand that, in the non-jury list, it is possible to secure a fixture in about a year. That is no matter for congratulations, but it certainly does not represent crisis point. Those who are content to take their place in the queue for the warned list may have a hearing in as little as eight weeks.
As Lord Ackner pointed out, the real measure of concern relates to the number of deputy judges who are required on a regular basis to man the Bench. At any one time, it appears that nearly half the Queen's bench judges are out on circuit or hearing criminal cases at the Central Criminal Court.
There will now probably be four courts sitting in the criminal division of the Court of Appeal, requiring probably four Queen's bench judges. There will probably be two judges dealing with the jury list, judges hearing commercial cases and judges dealing with the Crown Office list; and there will need to be judges sitting in chambers. By the time we come to the non-jury list, there are not many left. It appears that, when the Lord Chief Justice spoke, some 58 per cent. of cases in the non-jury and chambers lists were being heard by deputy judges. By October, there could well be no High Court judges available to try cases in the non-jury list.
Of course, no one can predict with accuracy how many judges will be available at any particular time. If two long commercial cases are settled, two additional judges may suddenly become available, but the likelihood is that all non-jury list cases will be heard by deputy judges.
As the Lord Chancellor said in the other place, it is true that for many years cases have been allocated to senior silks sitting as deputy judges, chiefly in order to test their suitability for appointment to the High Court. The Times, in a leader on 11 July that fell short of its usual reflective standards regarded that as a complete answer to the argument. But that is not the present position. Senior silks have been sitting regularly for long periods as deputy judges. If there were any likelihood of their being appointed High Court judges, their appointment might have been expected long ago. Judges who have passed 943 retirement age are recalled to sit as deputy judges. Circuit judges sit regularly as deputy High Court judges. That is now a regular, standard feature of our legal system.
I intend no personal reflection on any deputy judge. Some of them are extremely able and try cases with a competence that cannot be faulted. We may wonder why some of them have not received High Court appointments. However, there are aspects that give rise to anxiety. The first, as Lord Oliver pointed out, is that section 9(4) of the Supreme Court Act 1981 permits the appointment of High Court judges only as a temporary measure. For how long can a deputy judge continue to sit, week in, week out, as an integral part of the system, with that situation continuing to be described as temporary? If it is not temporary, cases are being heard by judges for whose appointment there is no statutory authority.
Secondly, litigants may feel that their concerns are of sufficient importance to them to merit being heard by a judge. The consideration of their case may have been of an impeccable standard, but they may leave the judgment seat with a feeling of dissatisfaction. Recently I heard the question asked: what if a disgruntled litigant challenged the judgment on the ground that the judge had not been properly appointed under statute?
It has been remarked that some of the cases in the non-jury list may involve sums amounting to more than £1 million. I confess that I have never subscribed to the view that the importance of a case can be measured wholly in financial terms. To someone who, by reason of industrial injury, will never work again, the sum of £60,000 may represent the difference between total penury and a degree of comfort. Working people are as entitled to have their cases considered by the best judicial minds as is a commercial company. But the point is well made that these are all cases of the greatest importance to those involved.
We may be told that the Courts and Legal Services Act 1990 is only now about to become effective and that we should wait to see the effects of the Act, particularly the proposals for moving more work to the county court. However, I am bound to feel some scepticism about that. Many cases involving sums of up to £50,000 have been transferred regularly to the county court for some years. I am not sure that appreciably more cases will in practice be heard in the county court, particularly since it became apparent during our debates on the Courts and Legal Services Bill that county courts are far from ready to take on much additional work, and we were assured by the Solicitor-General that no more work would be sent there until they are ready.
The next reason for anxiety relates to the strains that are being applied to some categories of case that at present are being heard by High Court judges and which may suffer if this trend continues. One area where it has been suggested that fewer High Court judges may be available is for work on circuit, particularly criminal work. Some cases, such as murder trials, are normally heard by High Court judges, although at some centres specific circuit judges are empowered to hear them. I know of no reason to complain that those cases are not properly and fairly disposed of, but I have heard anxiety expressed that if the stresses on High Court resources increase further that practice may be extended until fewer High Court judges travel the circuits. One day, it may be said that as the circuits manage quite well without High Court judges, why not withdraw them altogether?
944 It is sometimes pointed out that if a substantial case does not occupy the court for as long as was predicted, a High Court judge may find himself trying cases that would not normally be brought before him. That is no bad thing, because he sees how the circuit goes about its less dramatic business and can make appropriate comments.
Perhaps the greatest value of High Court judges visiting circuits is that they come back, they meet in London and visit other circuits. The presiding judges of the respective circuits meet together and the justiciary is a co-ordinated whole. A series of self-contained, isolated geographical centres without co-ordination would be far less capable of drawing attention to problems that occur over a wide area or countrywide or, where necessary, of monitoring the resources being made available by the Executive or of expressing the criticisms that are being made.
Indeed, judges who went out from London to the localities under Henry II and his successors changed the patchwork of local customary systems into the common law and brought about a central government, just as in the early 19th century, the circuit riding judges of America forged the federation into a nation. It would be appalling if that process were reversed.
One of the other concerns relates to the Crown Office list, which includes a wide and increasing range of cases on housing, education, the health service, immigration and the poll tax. Judicial review is being used for more grievances. If High Court judges were not available to hear them, and quickly, individuals would suffer. I entertain the unworthy suspicion that some Ministers and officials might not be greatly distressed if that were to happen. But I say at once that I am not alleging any deliberate policy to bring that about. I do not believe that there is any deep-laid conspiracy, and if there were no one who knows the present Lord Chancellor would believe that he would have any part of it.
The shortage of High Court judges derives more from Treasury policy and from the financial valuation that is placed on an effective legal system than from any plans for reviving the new despotism. I do not believe that the current situation resulted from any conscious action. It has crept up on us, although not wholly unnoticed and unheralded. We need to review it, lest it extend further.
We may need to reassess what classes of case are heard by High Court judges. There may be room for a reappraisal, but, if so, let there be a reappraisal about which we are all told and where those who wish may express a view. Indeed, I thought that that was what the civil justice review was intended to be. I believe that the outcome of any reappraisal would be to confirm the need for more High Court judges.
That brings me to the greatest cause for concern. Whatever else may be said of deputy judges, one thing is certain—they do not have security of tenure. If it is suggested that that is an academic point, we should reflect that generations of students of our constitution have been informed as a matter of the greatest importance that our senior judiciary have security in office. They cannot be dismissed by the Executive, as happens in some countries, with results with which we are tragically familiar.
It may be argued that there are situations in which there should be less difficulty in removing judges from office. If so, that is a matter to be fully debated, and a clear and precise procedure should be laid down. If, as we have always declared, it is a matter of the greatest importance 945 that cases are heard by judges who need not fear dismissal, it is a cause for the gravest concern when that is not happening and is seen not to be happening.
There is broad consensus on the matter among the senior judiciary. That should encourage us in the House to concern ourselves. I do not subscribe to Lord Radcliffe's theory that there is a wisdom, which gathers together all that is best in our national traditions, reposing in the breasts of the judiciary and which is necessary to control the excesses of Parliament. On the contrary, I believe that the rule of law, operated by an independent judiciary, is essential to effective parliamentary government. Without that, our legislation cannot fasten upon the actions of those officials whom it is intended to control. In that matter at least, the interests of the legislature and of the judiciary coincide.
If the warnings go unheeded, that may lead to a loss of confidence in the legal system and to a subtle, but real, change in the balance of the constitution—the beginnings of a slide which it is easier to start than to arrest. The additional cost of a few High Court judges over the cost of deputies is a modest price to pay to prevent those consequences.
§ Mr. Gerald Bermingham (St. Helens, South)
The hour is late, but the subject is important. I declare an interest, because I have been both a solicitor and a barrister—I practised both at some levels—some minor, some major—and I share great concern about what is happening to our legal system today.
When I was a student, I was taught a very simple lesson—that it was important that the state, or the Executive, was controlled, because sometimes it gets a little bit out of line. It makes mistakes because of the pressure of politics and because of the need for expediency. The judiciary and the courts were there to restrain and control. They were independent and they mattered.
For the judiciary and the courts to restrain and control —if they get it wrong, Parliament can always correct what they do—one must have in place the doctrine of excellence. One must have judges who are of superb integrity, great skill and great learning, and who have been enticed—I use that word because they are enticed by the nature of the office to give up what is often a lucrative and well worthwhile career—into sitting on the Bench. That is worth while and is a career in itself.
In the past 10 to 15 years, those of us who practise have seen, from time to time, because of pressure, because of shortage of manpower and because the courts are not always manned properly—and I am not as kind as my right hon. and learned Friend when I say this—hurried judgments, strain and people who are not quite up to it being asked to perform functions and duties for which they are not yet ready. It is sad.
When the Lord Chief Justice made his speech recently about the shortage on the High Court Bench, he was right. It is sometimes silly to deny the Bench the manpower that it needs. There is no doubt that in our increasingly complicated society, issues come before the courts that require more and more judicial hours. I put the matter as simply as that.
946 One cannot ask the Bench to cope with the existing workload, but, to a mere practitioner, that seems to be happening. In cases of judicial review one is told that one might get a hearing in year's time. I do not practise in that area, but if something needs to be tested, why cannot it be tested now? The answer is simple—there are not the judges available to do it.
Major fraud cases and cases involving murder, robbery or rape are now heard before a circuit judge. I do not intend any disrespect to that judge, but for something that serious one should have the most experienced judge from the High Court to try it. Sometimes rulings are wrong and the circuit judge's experience is not great enough to deal with the problem. That may lead to a miscarriage of justice and someone being incarcerated for years until the matter is reviewed on appeal and something changes. A civilised society cannot afford such a mistake.
What on earth are we doing? The Lord Chief Justice said that he needed perhaps 11 more judges. That is not an awful lot, but it would mean that the High Court Bench was to be staffed adequately. Is it right that those who exercise a judicial capacity at that level, who are subject to that type of stress, should be pushed to the nth degree through the case load that they face? Why is it that we cannot have the appropriate number of judges? What is the Executive seeking to do?
In the past I have been criticised for commenting on Mold Crown court, which is a nice court. Why cannot we have a visiting High Court judge in that part of the world? He could deal with the murders, the manslaughters and the more serious cases, including serious civil matters. Why is that not possible? Is it because we do not have enough judges?
When a High Court judge visits a court, what does he bring to it? He brings the experience that he has gained from visits to other places. I am not seeking to be unkind when I suggest such a breath of fresh air. Such outside influence does no harm to the local circuit judiciary—they welcome it. Such visits would bring new thinking. If we continue as we are, that will no longer happen.
What will the future hold? Perhaps we will have legal circuits, if that is the right word—areas in which no outside influence is brought to bear. In such circumstances everyone can get too cosy, which is not a good idea. The object of the circuit system was that judges should move about so that they learnt about different parts of the country and about things that mattered. They brought experience from area to area. That helped the circuit and the legal system.
Our society is becoming more complex and the way in which we deal with things is becoming more difficult. Therefore, we must train the judiciary of tomorrow to meet those needs. Nowadays fraud trials and others may last a year or more. When I was a law student any trial that lasted more than seven days was a miracle—it was unheard of. Now at any Crown court in any part of the country there are three or four-week trials running at any one time. That is the world into which we are moving.
When we ask someone to sit in judgment on a difficult trial that may last five or six weeks, we are putting an enormous strain on them. At the end of a trial on a criminal matter they must sum it up to a jury. Complicated civil cases may involve weeks and weeks of detailed argument. At the end of the trial the judge must provide an assessment of the merits of argument A against those of 947 argument B. That requires infinite skill. It requires a career structure in the judiciary that calls on those who are best able to sit in judgment.
I regret to say that nowadays the doctrine of excellence is beginning to slip. Instead of encouraging, recruiting and developing the judiciary, we seem to be restricting and restraining it. To say that we are using cheap measures would be an insult to those who sit and I would not wish to insult any of them, because they all seem to do their best, but if we are to cope with a difficult society tomorrow, we must encourage the lawyers of today. It passes by people like me, my right hon. and learned Friend the Member for Warley, West (Mr. Archer), my hon. Friend the Member for Norwood (Mr. Fraser) and the hon. and learned Member for Feltham and Heston (Mr. Ground), but we have a duty to the future and we must encourage people to seek such office. By restricting the High Court Bench and seeking to diminish the scope of the areas in which people can practise we, in turn, diminish the number of applicants who will wish to follow that path. That will be a tragedy because, in the past five or six centuries, we have built in this land a judicial system which is the envy of many. If the Government of the day—the Government of tomorrow may not think in the same way —seek to restrict simply by compacting the scope of the lawyers of tomorrow and, perhaps, the ambitions of tomorrow, we shall give future society a poor deal.
I hope that the Solicitor-General will take on board —it is meant in the kindest possible way—the fact that penny-pinching in the servicing of the High Court Bench today builds a disaster in our judicial system tomorrow. I urge him to encourage the Lord Chancellor to think a little more broadly. It might not be a bad thing if he realised that encouraging an increasing number of people to go to the High Court Bench would serve our society of tomorrow well.
§ Mr. John Fraser (Norwood)
If I congratulated my right hon. and learned Friend the Member for Warley, West (Mr. Archer) on getting a debate at 4.20 in the morning, my congratulations might be less than enthusiastic, so I shall not pursue that traditional line. However, he makes an important point and I was surprised at the figures that he gave, which suggested that between half and all the cases in the non-jury list may be heard by part-time deputy judges. That high proportion must give rise to concern. My right hon. and learned Friend also said—he made the point with considerable force—that judges who, although they are deputy judges, regularly hear cases in the High Court have no security of tenure. That seems to be wrong when the balances are as he described.
The Opposition have said time and again that it is important that business in the High Court and in county courts—I hope that there will be no competition between them—must be conducted efficiently and expeditiously, because justice delayed is far too often justice denied. Incidentally, that principle of expeditious business conducted by first-class judges applies not only at the top but at the level, for instance, of masters and summonses in the High Court.
It is outrageous that a case in which there may be no meritorious defence, and which proceeds under Order 14, may take four or five months to move from the issue of the 948 writ—now called the acknowledgement of service—to when Order 14 proceedings can be heard in chambers, even if it is a short case. That puts a premium on holding up cases simply for the chance of winning time. Therefore, I want to see improvements in that sector and at every level, including the taxation of costs—a matter which is important to both solicitors and counsel, but counsel say less about it.
It is disgraceful, particularly in relation to legal aid cases, that a case may have been conducted for several years, have to wait one year in the list to be heard and then those involved in it have to wait between six months and a year for the costs to be taxed. Matters are not always conducted efficiently. What has been said about judges, expedition and quality must apply across the spectrum. We do not want the Government to solve the problem of a shortage of judges in the High Court simply by transferring more and more business into the county court and creating log-jams and problems there, so as to avoid them in the High Court.
Will the Solicitor-General confirm that no attempt will be made to reduce the number of cases coming before the Crown Office? There have been murmurings that some judges want the number of cases coming before judicial review reduced. There are a number of ways of achieving that. We could have a tougher sieving process when getting leave for judicial review. Another suggestion, opposed by the Lord Chancellor, is that legal aid should not be made available for as many cases coming up for judicial review. There is no doubt that the ending of legal advice and green form assistance to those seeking to challenge cases involving immigration and political asylum matters could lead to a reduction in the number of cases going for judicial review simply because it would not then be possible for lawyers to put a case in hand quickly, which is necessary if leave is to be obtained for judicial review. Therefore, I hope that the Solicitor-General will confirm that no attempt will be made to curtail access to the divisional court for those purposes.
It is equally important that judicial review cases should proceed quickly. Once leave has been given for judicial review and—if the Crown is the respondent—once the Crown has filed its affidavit, for which it has 56 days, I believe that it could be months, if not a year, before the judicial review case is heard. That is not good because it puts a premium on delay. It is right that bad decisions by immigration officers and the Home Office should come before the courts for review and decision as quickly as possible. It is not helpful for the good administration of law that, when a decision is challenged, a premium is involved in having the matter delayed, with more interest in the delay than in the outcome of the case. That is one of the dangers that we must avoid in judicial review proceedings. I await with interest to hear what the Solicitor-General has to say in response to my right hon. and learned Friend the Member for Warley, West.
§ The Solicitor-General (Sir Nicholas Lyell)
I must congratulate the right hon. and learned Member for Warley, West (Mr. Archer), even in the dog watch, on giving the House the opportunity to debate this important subject, about which anxiety was expressed by the Lord Chief Justice at the recent Mansion House dinner for judges. It gives us an opportunity to consider not only the 949 precise number of High Court judges but the strength and deployment of the higher judiciary generally; the areas of current pressure, in particular the Court of Appeal criminal division and the divisional court; other areas where, happily, good progress has been made; the effects to be expected from the implementation of the civil justice review; questions relating to the effectiveness or otherwise of the use of High Court judges on circuit, and related problems such as the increase and sometimes daunting length of certain types of trial and how they can be overcome.
My noble and learned Friend the Lord Chancellor recognises those problems and the duty of the Government—any Government—to provide an independent judiciary with the resources that it needs to maintain—in vigour—a prompt, efficient and independent judicial system, which is fundamental to our free society. I state that not to gloss the problem but to set out what are the accepted ground rules.
Before proceeding to an analysis of the current position, I take the opportunity to pay tribute to the work of the judges of the supreme court and the judiciary generally. At a time when, recently, too many criminal trials have been shown to have given rise to serious miscarriages of justice—and in consequence our whole system of justice is rightly the subject of the review by the royal commission—there has been a tendency in some quarters to use the judges as a scapegoat and to forget that cases must be tried on the evidence. Unless one has been privileged to appear regularly in the courts, it is hard to appreciate the burden of judicial life, and easy to fail to realise that behind the wigs and trumpets and judges' lodgings lie the concentration and sheer strain of the judicial day—constant attention, careful analysis, the burden of long cases, the weight of background reading, the anxiety of setting the right sentence, and generally, for those who undertake this work between the ages of 50 and 75, of life away from home for weeks on end. At different levels, I pay tribute to the patient work of the circuit judges handling a huge variety of smaller cases, developing an understanding of housing matters, of social security, the burden of criminal work on the circuit bench, and to the expertise of district judges whose major input into cases where representation is less expert or, often, non-existent causes such heavy reliance on the court. They deserve our support, appreciation and admiration more often than they get it.
Having said that, we must also remember that resources are finite both in money and in skilled manpower and, therefore, there is a duty on the Lord Chancellor and the Lord Chief Justice to deploy those resources efficiently and effectively.
The subject of the debate is the number of High Court judges. The fact is that today they are the highest number in our history. They have increased from 31 in 1945 to 42 in 1960, to 75 in 1979, and today, with the imminent appointment of a further High Court judge in the chancery division, to 84. Over the same period the number of Lords Justices of Appeal has risen from six in 1945 to 27 today. The present Lord Chancellor has obtained over the past three and a half years an increase of five High Court judges and four Lords Justices. The increase since 1979 in the numbers of Lords Justices, who are so essential to the 950 work of the Court of Appeal criminal division and the divisional court is no less than 50 per cent.—-from 18 to the current 27 who are in post. Furthermore, with the civil justice review, much of the civil work of the High Court is being transferred to the county court. In the past 10 years there has been an increase in the number of circuit judges by no less than 110, or 50 per cent., with 49 of them appointed by the present Lord Chancellor.
The task is, therefore, to analyse the problem highlighted by the Lord Chief Justice and restated tonight in the debate, and to show what the Government are doing to tackle it. If more High Court judges are necessary, we must not shrink from the problem, but first we must be sure that we have deployed those whom we have to the best effect.
I acknowledge straight away that there are pressures in both the Court of Appeal criminal division and the divisional court. The number of cases heard by a full court of the Court of Appeal criminal division has increased from 2,528 in 1979 to 3,627 in 1990, an increase of 43 per cent. over the position 10 years before, but with the number outstanding at the end of the year having been reduced by 12 per cent. Likewise, the number of applications for judicial review has increased markedly in the past few years. In 1990–91, a total of 2,149 cases were disposed of by the divisional court, an increase of 33 per cent. over the previous year.
It is the view of my noble and learned Friend the Lord Chancellor that an extra court is needed in the Court of Appeal criminal division now and that increased resources should be devoted to the divisional court with its heavy workload of judicial review. Incidentally I should make it clear that it is the view of the Law Officers that in our complex society, where there is an ever-increasing need to rely upon secondary legislation, the development of judicial review of administrative action is entirely right and healthy. Although my ministerial colleagues have sometimes suffered its effects, I have never heard any of them suggest that such judicial powers should be curtailed. On the contrary, the response of the Government by means of such publications as "The judge over your shoulder" has been to ensure that departments of state understand better the ambit of their powers and the way that they should be exercised so that rights are respected and the law obeyed as it should be.
The picture is not uniformly gloomy.
§ Mr. Fraser
The Solicitor-General has paid great respect to judicial review. Is he aware of the rule that is laid down by the Home Office in immigration cases? The Home Office will withhold removal of a person from the United Kingdom for only 48 hours in order to get the case before a judge. Does he not think that that is placing far too great a burden on judges and is effectively denying individuals access to judicial review by setting such a short period between the taking of instructions and getting the matter before a judge?
§ The Solicitor-General
The hon. Gentleman raises a difficult and important matter, but I am not at all sure that I do hold such a view. As I have said, it is a difficult matter and it is not the subject of the debate. There are competing aspects of the problem and I cannot say that I hold the view that the hon. Gentleman has set out.
Returning to the deployment of the judiciary, the picture is not uniformly gloomy. Waiting times in the 951 Queen's Bench division have been reduced to two months on the warned list, 13 months on the fixtures list and seven months on the after-fixtures list. Indeed, the number of outstanding trials in that division has been halved since June 1989. A great deal of judicial effort has gone into clearing that backlog which, I am given to understand, has now reached a level at which it is no longer sensible, or perhaps even possible, to reduce waiting times. In other words, the parties need this sort of time to prepare themselves for the trial.
§ Mr. Bermingham
Does the Solicitor-General agree—I speak with some experience of this field of the law—that 13 months' waiting on the fixtures list in civil matters is far too long? Many years ago I was involved in the settlement of damages in a series of fatal accidents, and I know that families have to wait a long time for settlements. Surely 13 months is far 100 long and the period should be reduced.
§ The Solicitor-General
It is difficult to comment on individual cases, but I wonder why a case of settlement of damages requires it to be on the fixtures list when it could be brought on a great deal faster if it simply went on to the warned list.
§ Mr. Bermingham
If the right hon. and learned Gentleman will listen, I will tell him why. It was a matter of quantum. That cannot always be agreed, and sometimes there is a point of principle in what is meant, for example, by continuing loss or by future potential earnings.
§ The Solicitor-General
It is difficult to dispute at this time of night, but it is not self-evident why the case had to go into the fixtures list as opposed to the warned list.
The picture in the Crown court, which was causing justified concern just five years ago, is also greatly improved. The waiting time for custody cases in London is shorter than at any time during the past 14 years during which records in the present form have been kept. Since 1979, waiting times have dropped by 31 per cent. or by seven weeks. That is in spite of a doubling of the workload of the Crown court. In this age of rising crime, those figures suggest that, although there is never room for complacency, far from collapsing, the system is coping extremely well with the challenges that face it.
Thus, while the Lord Chancellor is both concerned about and sympathetic to the problems that we are discussing, the House will realise that before he can increase further the number of judges on the High Court bench, he will need to be able to be satisfied that existing resources are being deployed to the best effect that they reasonably can. Two points in particular need to be focused upon. The first is the substantial transfer of work from the High court to the county court under the civil justice review. lit will also be remembered that paragraph 82 of the review stated expressly:It is the leading objective of the Review that the business of the civil courts should be allocated to the various tiers of judiciary in such a way as to ensure that it is handled at the lowest level appropriate to each case.The second point—
§ Mr. Archer
The right hon. and learned Gentleman has been most courteous in giving way. Does he recollect the debates in which we both participated on the Courts and Legal Services Bill, when I thought that it was common ground, first, that the county court was not yet ready to absorb more cases and, secondly, that no more cases could be transferred to it until it was ready?
§ The Solicitor-General
That is common ground in principle, and it was common ground in fact at that time. However, there has been a very considerable increase in the number of county court judges as circuit judges, as I have already shown from the statistics. There has been a considerable improvement in the deployment of those judges, with trial centres giving an opportunity for much more effective use of those resources. I know that the Lord Chancellor keeps a careful watch on the way that those matters are being progressed. The opportunity for that transfer, which was contemplated by the civil justice review, nevertheless remains.
The second point concerns the deployment of High Court judges on the circuit and the question—I put it no higher than that—whether at present what they find themselves doing represents the best use that can be made of the time, expertise and formidable experience that they can bring to bear.
In the context of the civil justice review I should say something of the widespread use of circuit judges sitting as judges of the High Court in accordance with section 9 of the Supreme Court Act 1981, and the use of silks as deputy judges—a topic of current concern, rightly mentioned by the right hon. and learned Member for Warley, West.
Mention has been made of 58 per cent. of those trying High Court cases in recent weeks falling into one or other of these categories. It is a fair criticism if what is intended as a back-up measure or a valuable training ground for those who may go on themselves to be High Court judges is allowed to become too constant a feature of the lists, but I wish to put the problem into perspective and to link it with the correct deployment of circuit and High Court judges.
To put the figures into perspective over a full year, in 1990—the last full year for which figures are available—55 per cent. of sitting days were sat by High Court judges, 21 per cent. by section 9 circuit judges and the balance of 24 per cent. by the deputies. As a proportion of all High Court sitting days, the proportion of cases tried by other than full High Court judges was rather smaller, but I recognise that the problem is principally to be found in the Queen's bench division.
A significant part of the solution to this problem and to the lightening of the burden on the High Court judiciary of the less heavy civil cases can reasonably be expected to come from the implementation of the civil justice review. Already in 1990—one knows that the transfer must anticipate the actual trial—some 22,959 cases were redirected from the Queen's bench division to the enlarged county court system.
Nevertheless, of the total of 2,489 civil trials heard by the Queen's bench that year, 1,274 of them being heard in the Royal Courts of Justice, some 1,670 or 67 per cent. were claims for personal injury, of which more than a third —578 or 36 per cent.—involved amounts below the new county court threshold of £25,000 and a further 262 or 21 per cent. fell in the £25,000 to £50,000 band eligible for trial either in the High or county courts. Those figures must be treated with some caution, since not all would be appropriate to be heard by circuit judges, but they show the considerable weight of work that can properly be transferred. That will release not only some High Court judges but a number of senior circuit judges for work including, directly or indirectly, important criminal work out on circuit.
§ Mr. Bermingham
Does the right hon. and learned Gentleman agree that in civil matters the problem is not always the sums involved but the legal issues? A case may concern £10,000 or £1 million—it does not matter.
§ The Solicitor-General
I entirely agree with the hon. Gentleman. As he will have noticed, that is why I astutely said that such figures must be treated cautiously.
The deployment of High Court judiciary on circuit is by no means an easy matter and the questions that I wish to raise are not asked in any spirit of dogmatism. They are matter largely for the Lord Chief Justice and the Deputy Chief Justice who, under our constitution, are responsible for the day-to-day distribution of judicial resources as between the different areas of the Royal Courts of Justice and the circuits. Such matters are among the subjects of their regular meetings with my noble and learned Friend the Lord Chancellor, who, as president of the Supreme Court, retains ultimate responsibility.
There is, however, reason to believe that many High Court judges out on circuit do not always find themselves used to the best effect. That seems to be supported by analysis and anecdote. The Lord Chancellor's Department has been not unaware of the difficulty for some time and a careful analysis has been carried out which the Lord Chancellor is looking forward to discussing with the heads of division.
Based on experience in 1990–91, at any given time there are between 22 and 28 High Court judges out on circuit. On this basis, some, at least, of the cases they are to try might be appropriate to a circuit judge of suitable experience. A way of reducing the backlog of cases in the Court of Appeal criminal division and the divisional court may be to transfer back to those areas of greatest need some High Court judges who would otherwise be on circuit, at least for a temporary period.
In summary, therefore, may I say this. My noble and learned Friend the Lord Chancellor fully recognises the anxiety on this matter. Both the present Government in the past 10 years and my noble and learned Friend during his three and a half years of office have continued the policy of significant increase in the number of the judiciary, marked indeed in the numbers of Lords Justices and circuit judges which have gone up by no less than a third and 50 per cent. respectively since 1979.
My noble and learned Friend fully recognises the burdens on the Court of Appeal criminal division and the divisional court deriving from the increase in judicial review. He is anxious to see extra judicial resources transferred in each of those directions. He is himself considering very carefully the match between the tasks to be carried out and the judicial resources available and looks forward to reflecting carefully on all that has been said in this debate and to continuing to work closely with the higher judiciary to tackle and overcome the problems in whatever way he is satisfied is necessary.