Judges

HC Deb 11 February 1993 vol 218 cc1173-82 7.32 pm

The Parliamentary Secretary, Lord Chancellor's Department (Mr. John M. Taylor)

I beg to move, That the draft Maximum Number of Judges Order 1993, which was laid before this House on 21st January, be approved. The draft order is made under section 2(1) of the Supreme Court Act 1981. It relates to judges of the Court of Appeal. The court is served by the Lord Chief Justice, the Master of the Rolls and the lords justices of appeal. The President of the Family Division and the Vice-Chancellor also sit there from time to time. The lords justices form the main judicial strength of the court, although High Court judges sit with them to hear criminal appeals and other cases.

It is a matter of natural public concern that there should be sufficient lords justices of appeal to hear cases which involve the liberty of the subject or to determine matters of law which affect the citizen and the state. Apart from the small number of cases which go to the other place in its judicial capacity, the Court of Appeal is the pinnacle of our judicial system. It is therefore vital that its status and efficiency be preserved.

The maximum number of lords justices of appeal was increased from 23 to 28 by the Maximum Number of Judges Order 1987, and 28 judges now hold appointment, one of them since 11 January. The proposed order will increase the maximum number to 29.

In considering the justification for a further increase in the number of lords justices in England and Wales, I hope that it may be helpful to set the matter in the context of demands on the Court of Appeal civil division and the resources that have been available to that court recently.

At the end of 1991, Lord Donaldson, the then Master of the Rolls, in his review of the legal year, drew attention to the need for a small increase in the judicial establishment of the Court of Appeal". At that time the establishment stood at 27 lords justices, in addition to Lord Donaldson. In the following year, the new Master of the Rolls echoed the call by identifying an increase in the number of lords justices sitting in the Court of Appeal as one means of helping to reverse the trend of increasing backlogs of work in that court.

The number of final appeals received in the civil appeals office over the past seven years has remained roughly constant, at about 900 cases a year. Although interlocutory appeals over that period have increased from fewer than 700 receipts to almost 800 in 1992, it still seems unlikely that the rise in backlogs of about 25 per cent. can be accounted for by additional appeals. Rather, it seems likely to be the result of a fall in the rate at which cases are disposed of.

It is not easy to determine the exact causes lying behind that fall, but the increase in reserved judgment from 15 per cent. in 1986 to 31 per cent. in 1991 suggests that one reason is that cases are becoming more complex and are therefore taking longer to dispose of. That view is reinforced by an increase in the number of civil appeals which take more than a year to hear.

In the light of the increasing backlog and the call made by Lord Donaldson for a small increase in the judicial establishment", which his successor echoed, an additional lord justice was appointed last month. That brought the complement up to the statutory limit, and the wish to add a further lord justice to the strength has necessitated this order.

I recognise that it may be argued that, given the current position in the civil division of the Court of Appeal, an increase of two lords justices is not in itself sufficient. I should explain to the House that the ability of the Court of Appeal to get through its business is not determined solely by the number of lords justices.

An internal report in 1989, which the then Master of the Rolls endorsed, made it clear that the need for lords justices could be lessened by employing more legal staff in the civil appeals office. In recognition of that fact, five new legal posts have since been provided for that office.

For completeness' sake, the House, in considering the justification for the proposed increase in the limit, will wish to bear in mind the fact that, the civil division of the Court of Appeal aside, lords justices also sit in its criminal division and the divisional court, as well as undertaking work outside the court, such as public inquiries and the chairmanship of such bodies as the Security Commission.

After careful consideration of the current and predicted work load of the Court of Appeal, it has been concluded that an additional appointment is necessary at this time and will assist in the more efficient dispatch of business of the courts, and that the House should further discharge its responsibility by approving the draft order. I commend the order to the House.

7.37 pm

Mr. Paul Boateng (Brent, South)

The increase in the number of those appointed to the Court of Appeal is inadequate. The small increase in the complement which was envisaged by the former Master of the Rolls, Lord Donaldson, could not have been smaller in terms of the Government's recognition of the need which he outlined. Lord Donaldson asked for a small increase. I doubt whether he expected that it would be as small as one. We argue that the Government have not, with this order, satisfied the requirements of the Court of Appeal.

We want to know whether the Lord Chancellor and his Department took the advice of the present Master of the Rolls and the Lord Chief Justice before determining the figure of one which is referred to in the order. Did the Master of the Rolls advise the Lord Chancellor that an increase in the complement by only one was required? I doubt whether that was the case. In the interests of open government, I hope that the Minister will tell us how he and his Department arrived at an increase of one, bearing in mind the current pressure of work in the Court of Appeal.

The Minister referred to the remarks of Lord Donaldson as the genesis of this provision. If his remarks have had that effect, and several months later the Government have come forward with this paltry increase of one, it is to be hoped that Lord Donaldson's remarks on his retirement with regard to the number of judges currently sitting in the High Court will also be taken into account. The Minister will know, or certainly should know, the words of Lord Donaldson on that occasion. He was supported by all the most senior judges in England and Wales, without exception, who had come to that place to pay him worthy and just tribute. He said: I have no doubt that it is my duty to inform and warn both the Government and the public if the level of resources is such that the standard of service which the Court can offer is likely to decline or is in fact declining. The Minister has pointed out that, in the criminal division of the Court of Appeal, it is necessary and it is common practice from time to time for High Court judges to sit alongside Lords Justices of Appeal.

Lord Donaldson warned that, unless the number of High Court judges was increased and extra resources were provided, there would inevitably be a further decline in standards when standards were already declining. He chose to make that point in his valedictory remarks. His remarks have been echoed time and time again by his brother judges. Time and time again the Government have set their face against increasing the complement of High Court judges.

Undoubtedly we shall hear from the Minister in reply that the Lord Chancellor has established a review. When will we hear the results of the review, if indeed they are to be published? Bizarrely, at a time when the Government parade themselves in the clothes of open government and purport to share with all their citizens the nature, responsibilities and, in so far as they can, the workings of government, we still do not know whether the findings and recommendations resulting from the review will be published so that all may read them.

As the Minister said in his opening remarks, the complement of judges in the Court of Appeal and the High Court is a matter of legitimate public concern. The matter has been aired in the other place on numerous occasions and we welcome the opportunity to explore it in this House. The number of judges who sit in the High court relates to the number of judges who sit in the Court of Appeal and affects the expeditious dispatch of work. The overwhelming burden of evidence is of a civil and criminal justice system in a state of crisis.

That crisis has been drawn to the attention of the Government repeatedly. As long as the Government fail to address it, and turn a deaf ear to those who provide and those who consume judicial services, we shall air anxieties about the administration of civil and criminal justice at every opportunity on the Floor of the House.

We are indebted to their Lordships for their contribution to the debate, and particularly to the Lord Chief Justice. He has been a shining example of the importance of making heard in the clearest and most effect terms the contribution to the public debate of the senior judiciary. It was interesting to note his words, which were widely reported at the weekend, about the number of judges appointed to the High Court. As I know that you are aware, Mr. Deputy Speaker, judges in the Court of Appeal are ultimately drawn from High Court judges. You will appreciate the importance of ensuring that sufficient judges sit in the High Court, from whom the additional complement of judges may be drawn.

We are obviously anxious to ensure that the workings of the High Court and the Court of Appeal are not impaired by insufficient judges in the High Court. The Minister will recognise the importance of the fact that the quality of judges in the Court of Appeal is perhaps higher than it has ever been. The most recent appointment was a particularly welcome one. It was broadly and warmly welcomed not only in the legal profession generally but outside it. One wants to ensure that the complement of judges in the High Court is such as to provide the broadest possible pool of high-quality judges. Therefore, it is important to ensure that further appointments are made to the High Court. The importance of that and the Government's failure in that regard was ably demonstrated by the Lord Chief Justice's remarks at the weekend.

The Lord Chief Justice threatened a confrontation with the Government on the issue unless he was allowed to recruit more High Court Judges. Although it does not go far enough, we welcome the order to increase the complement of judges in the Court of Appeal. But our question for the Lord Chancellor—or his surrogate, who will pass it on to the Lord Chancellor—is: when will we hear that the long called for and much sought after appointments to the High Court will be made?

When will the Minister and the Lord Chancellor announce the appointment of more High Court judges? Why is their dilatoriness so great that the Lord Chief Justice was forced to the point of making a veiled threat of resignation? He said:

I have no immediate intention of resignation. But I can't do the job unless I have the judges. Tonight we know that he is to have at least one more judge in the Court of Appeal, but we have heard nothing that will give Lord Taylor any confidence that the Government take seriously the obvious need for more judges in the High Court.

Judges appointed to the Court of Appeal currently have a critical function, which is made more important by the increase in the amount and complexity of work with which the High Court generally must deal. As you will know, Mr. Deputy Speaker, in autumn last year the number of outstanding appeals had risen from 989 to 1,130 in 12 months. That led to a 12.5 per cent. increase in waiting times. Since then, the position has worsened, and it continues to deteriorate. We are not convinced that the addition of one judge to the Court of Appeal will make an appreciable difference to the current waiting times and the logjam in appeals.

One of Lord Donaldson's concerns was the fact that Appeal Court judges were increasingly being diverted to deal with criminal cases. He said that the civil division may be confined to hearing the more urgent appeals, leaving the rest to wait for very long periods of time". That is all the more reason for increasing not only the number of judges in the Court of Appeal, but the number of High Court judges generally; such an increase would in turn affect the work load of the Court of Appeal.

A number of their Lordships, on both sides of the House and on the Cross Benches, pointed out forcefully the implications for civil liberties and the liberty of the subject, and the other potential constitutional dangers of failing to maintain the judiciary at its full complement. That would affect all the various divisions of the High Court; its most deleterious impact would not be confined to the expanding area of judicial review. It has become increasingly necessary to test in the courts an over-mighty state—a Government who have become too complacent and too accustomed to the exercise of unfettered power. The judiciary manage to ensure that some restraint is placed on the excesses of Government.

Of late, a number of Conservative Members have had their knuckles well and truly rapped—deservedly—by their Lordships, as a result of such excesses. A number of the mighty have been brought low and their golden locks have turned grey and hoary as a result of their experiences at the hands of the judges. We want more of that, which is one reason why we welcome the increase in the complement of the Court of Appeal.

We want the Government to be subjected to the most rigorous scrutiny in terms of the exercise of their powers. It may be uncharitable, but we cannot help suspecting that their tardiness in regard to the appointment of judges—be it to the Court of Appeal or to the High Court—is linked to a disinclination to strengthen the hands of the judiciary. That is well demonstrated by their repeated failure to respond to the demand for an increase in numbers in the higher judiciary, and accounts for their presentation of an order that proposes an increase of only one to the complement of judges in the Court of Appeal.

We want the Minister to say that he will keep under constant review the number of judges in the Court of Appeal and the court's need for resources. We hope that the court will not have to wait for the valedictory utterances of the current Master of the Rolls to secure another increase of one.

The workings of the Lord Chancellor's Department should be made more public than they have been to date: the Department is a relatively new constitutional creation in its current form, with a House of Commons Minister having responsibility. We want to hear and see more of it; we want its workings to be more publicly revealed, in accordance with the spirit of the citizens charter. We are even happy to see more exposure for the Minister: indeed, the more he was exposed, the more I would welcome it, because the more we examine the Government's approach to the whole issue of civil and criminal justice, the less satisfactory it is revealed to be.

What is so disturbing is the fact that the Government seem to be immune to reasoned, objective criticism It is worth referring, albeit briefly, to the debate in the other place, which was initiated by Lord Irvine of Lairg on 22 October last year. On that occasion, judge after judge, retired judge after retired judge, and noble and learned Lord after noble and learned Lord rose to refer to the insufficiency of the higher judiciary. At the end of the debate, after a series of distinguished contributions, the Lord Chancellor was asked a direct question by Lord Irvine of Lairg: did he or did he not accept that there is a clear and present need for more High Court judges?"—[Official Report, House of Lords, 22 October 1992: Vol. 539, c. 897.] The Lord Chancellor replied at some length, saying that he believed that it was necessary to provide a basis for the answer to that question, and that he expected the review that was currently under way to do so.

We want the Minister to state unequivocally that that review will soon be completed, that its findings will be published in full and that all the resources needed by judges involved in the review will be provided. We also want to hear that the Government will accept the review's findings. Having prayed in aid the existence of the review for so long, for the Government then to say that once its findings are known, not only will they not be bound by them, but they do not intend to publish them, would result in their losing all credibility.

At a time of crisis in the judicial system, when there is open dissention between the Lord Chief Justice and the Lord Chancellor about the sufficiency of judicial numbers, the public are entitled to a clear and unequivocal reassurance on the issue. We intend to ensure that they receive that reassurance.

8 pm

Mr. Robert Maclennan (Caithness and Sutherland)

I apologise to the Minister for my late arrival, but I was caught on the wrong foot because I thought that the debate was starting a little later. I am glad that the Minister is likely to reply as he will have an opportunity to consider the few remarks that I want to make.

It is a definite step in the right direction for a junior Minister to he present to answer such a debate. All too often in the past there has been no direct accountability in the House, and I gladly acknowledge that step tonight. However, the subject that we are debating—the adequacy of the establishment of judges in the Court of Appeal—is of great importance, and it is not wholly satisfactory that there is no Cabinet member to answer the debate. In saying that, I cast no reflection on the Minister, whose personal credentials are held in high regard.

However, the constitutional arrangements are unsatisfactory. They confine to another place the Minister of Justice, in this country. He has the anomalous role of presiding over debates in another place and, from that position, making the appointments to the Bench and overseeing what we have by way of a Ministry of Justice, with responsibility for the state of the statute book and the state of law reform in this country. That anomaly can be corrected only by the appointment of a Minister of Justice who is a politically accountable and fully fledged Cabinet Minister elected to the House of Commons. Until then. I fear that such issues such as the one that we are discussing tonight will not be given the attention that they deserve. In the eyes of judiciary, such issues are clearly of great importance.

It has not been common in the past to find senior members of the judiciary who are openly critical of the Government in terms of the manner in which they have discharged their responsibility for the administration of justice. However, on the issue of appointments to the Bench, judges have been speaking out with a clarity which betrays the urgency of the matter.

The proposal that we are discussing may seem modest—it augments the Court of Appeal by one appointment. Indeed, considered in the light of the remarks—to which the hon. Member for Brent, South (Mr. Boateng) has already alluded—of Lord Chief Justice Taylor and others, about the under-provision in the higher reaches of the judiciary in this country, it is a modest development. The most notable speech was that made by Lord Chief Justice Taylor in the Dimbleby lecture, when he said that the judicial deficit was denying access to justice. The modest proposal before us does not meet that deficit.

The Court of Appeal is often augmented by judges from the High Court bench who sit for specific appointments and cases. That may be regarded as an inevitable and not wholly desirable illustration of the shortages, which the provision will by no means make good. The consequence of High Court judges augmenting the Court of Appeal in that ad hoc way ripples through the judicial system. Those judges have, in turn, to be replaced on the bench, thus contributing to the problems of the High Court. Therefore, in dealing with the proposal for one additional appointment, we must not overlook the fact that the issues are closely interrelated.

The evidence shows that expedition in the discharge of justice is being hampered by the shortage of senior judges. That is a matter of the greatest concern. I have no doubt of the Lord Chancellor's interest in the appointment of judges. He has always made it plain that he attaches the highest importance to the appointment of judges of a suitable calibre. He devotes much personal attention to ensuring that that aspect of his duties is fully discharged, and there is general admiration for some of his more recent appointments to the higher roles. I am happy to acknowledge the distinction of those appointments to the Court of Appeal and other senior courts of the realm. However, the Lord Chancellor's job goes beyond choosing suitable men and women for those senior positions. The Lord Chancellor must also ensure that there are adequate numbers on the bench to discharge judicial functions.

It has not been uncommon for judges openly to comment on such matters. Perhaps the recognition of the separate nature of their role and their natural reluctance to enter the political cockpit is not only understandable, but desirable. The distinction between the judiciary, and the Executive and the legislature, although not reflected in a written constitution—as it might be, and indeed is, in most countries—is one that we would do well to retain. However, when the line is crossed by the judges themselves—as it has been recently—we must recognise that a penumbra of discontent and anxiety lies behind that action. We are entitled to ask exactly what representations have been made by the judiciary about the numbers that they would consider necessary to ensure that there is no backlog of cases and that justice is not being denied.

The issue of a review has already been mentioned in the debate. We want to know how speedily it will be concluded and what evidence has been presented. One of the great anxieties about the judicial system—it is germane to the order—is the evidence of a further escalation of the costs of the judicial system, particularly legal aid. We are not debating legal aid today, but there is no doubt that the escalation of unit costs—which has, in turn, caused a rise in legal aid costs—is due to the number of judges available to hear cases. Many cases have to be adjourned because there are not sufficient judges to hear them. That has resulted in gross inefficiencies as well as the denial of justice. That was led in evidence to the Public Accounts Committee as recently as last week.

We are not talking about something abstract. It is not a matter of plucking numbers out of the air and saying that a certain number of additional judges would be appropriate to meet the problem. These are serious and hard questions, which must be answered by the responsible Department of State. We are entitled to know what evidence it has, and why it has taken such an extraordinarily small step. The appointment of one more judge to the Court of Appeal will have only the most modest impact on the High Court, where it appears that the worst problem exists, and would appear to go only a small way to meeting the anxieties so openly expressed by the most senior judges in the realm.

8.11 pm

Mr. John M. Taylor

It is gracious of the hon. Member for Caithness and Sutherland (Mr. Maclennan) to acknowledge the ministerial post that I am doing my best to discharge. He merely addresses a truism when he says that the responsible Cabinet Minister is in the other place. My recent visits to that other place to listen to debates left me with the clear impression that there is no shortage of strongly held opinions on these matters in that House as well as in this.

The hon. Member for Caithness and Sutherland is right to say that expedition is the friend of justice, just as delay is its enemy. I would not concede to him, however, that expedition in judicial matters resides exclusively in judge numbers. There are many other factors, and these are urgently exercising both the Lord Chancellor and his Department. There is a wish to improve the judicial process and to simplify it. Those matters are exercising the Runciman commission, which I understand is due to report later this year. It will note that its findings are to be most closely studied by the hon. Gentleman.

The hon. Gentleman will know this, I think, but I remind him that the hearing of criminal appeals has always fallen to High Court judges. Before the Appellate Jurisdiction Act 1908, the Court of Crown Cases Reserved would consider appeals arising from points of law. That was done en bloc, with all High Court Queen's Bench division judges sitting. The Lord Chief Justice would preside. The Court of Criminal Appeal succeeded the Court of Crown Cases Reserved, and in 1966 the Court of Criminal Appeal was replaced by the Court of Appeal criminal division. It was felt that the Queen's Bench judges sitting therein would benefit from the chairmanship of the Lord Justice in each court. There is therefore no novelty in High Court judges participating in the affairs of the Court of Appeal.

I now direct my remarks more particularly to the speech of the hon. Member for Brent, South (Mr. Boateng).

Mr. Maclennan

Before the Minister does that, I think that he will acknowledge that the Supreme Court Act 1981 makes specific and explicit provision for the appointment of judges and others to sit in courts on an ad hoc and temporary basis. It appears that that temporariness has been extended considerably to the point at which it is even being questioned whether what is being done is within the scope of the 1981 Act. It is extremely questionable whether appointments are any longer to be regarded as temporary.

Mr. Taylor

I shall have more to say about the strength of the appeal bench. Although all of us who have mentioned the matter may have risked the attentions of the Chair, I shall try to say in what I hope will be germane remarks a word or two about High Court judges, even though the order does not strictly relate to that section of the judiciary.

The Opposition's general concern to maintain our system of justice in good order is shared by the Government—hence the review of High Court judges' work, deployment and numbers. They are inevitably a scarce resource. We intend to ensure, however, that there are enough of them and that their skills are carefully husbanded. I think that we have the good will of all interested parties in taking that line.

I say, slightly reproachfully, that it would be improper to suggest that the Lord Chancellor would seek to weaken judicial manpower for political reasons. If pressed, I do not think that the hon. Member for Brent, South would subscribe to such a suggestion. I hope that he would not—indeed, I am sure he would not. To propose judicial review almost as a substitute for political opposition tells us much more about the Opposition than about judicial review.

Mr. Boateng

The Minister must face the fact that the number of applicants for judicial review has increased from 685 in 1982 to 2,437 last year. It is no coincidence that, in those 10 years, there has been only one Government in power—a Conservative Government. It is no coincidence also that it has been found that, with a Conservative Government in power, with a working majority, an effective way of challenging the abuses introduced by that Administration has been to use the divisional court. That is not to cast any reproach on the Opposition: it is to take the Government to task and to commend the vigour of the judiciary and the enterprise of the citizen.

Mr. Taylor

The hon. Gentleman knows that judicial review has been a growth industry. The only interesting speculation is whether it would have grown even faster had we had a Labour Government during the relevant years. I say with some satisfaction that that is entirely hypothetical: it did not arise and it does not arise.

The hon. Member for Brent, South speaks rightly about the quality of the appeal bench. We have fine traditions and high standards. He asked me, as did the hon. Member for Caithness and Sutherland, whether one additional lord justice was sufficient. One additional lord justice was appointed last month, which made a total of 28. If the order is agreed to, a further lord justice will be appointed soon. An internal report presented in June 1989 recommended that additional lawyers be made available to the civil appeal office. With the assistance of the judiciary, calculations showed that six lawyers could save the time of two lords justices. Five additional lawyers were recruited after April 1990.

The former Master of the Rolls, Lord Donaldson, said in his valedictory speech in July 1992, to which the hon. Member for Brent, South has referred, that he was sure that the predicted saving in judicial time would accrue. The overall result is that, once the further lord justice is appointed, in two years two extra lords justices will have been added to the strength and the time of almost two lords justices released to meet any new work load—in a sense, four net new lords justices.

Mr. Boateng

It is a novel and interesting formula that two lords justices a-sitting equals six lawyers a-scribbling. We must get to the bottom of this. Is the Minister seriously suggesting that the appointment of two Lords Justices is saved by the appointment of six lawyers to the servicing department? If the Minister maintains that that is the case, I hope—he can have nothing to fear from this—that he will put the basis of that formula and calculation in the Library of the House of Commons so that we can all share in it, inform our legal and judicial brethren as to how they might better organise their time and also reassure the public on that point.

Mr. Taylor

The answer is yes, I do mean what the hon. Gentleman asks whether I meant. I draw my guidance in those comments, which were made in completely good faith and with confidence, from—not least—the last two reports of the Masters of the Rolls on the workings of the Court of Appeal.

As the hon. Gentleman invites me to put some comment into the public domain, I shall do so. We live in a world of scarce resources in every sense and there are many who claim, with every possible best intention, that more resources must be deployed in this, that or the other direction. Meanwhile, the Lord Chancellor has the task. It stays with him. After all the urging, his is the decision. In this, he has responded to calls for more lords justices made by old and new Masters of the Rolls in their annual reviews.

I risk a bare trespass, as others have done, on High Court judges. That there should be sufficient High Court judges is a matter of natural public concern. In recognition of that concern, the Lord Chancellor and the Lord Chief Justice asked a group of officials and some senior judges to advise them on the work, deployment and numbers of High Court judges. The only comment that I should properly make—I was challenged to make it by the hon. Member for Brent, South—is whether that report will be published. The answer is that the report was to the Lord Chancellor and the Lord Chief Justice. It is a matter for them to decide between them and jointly whether it is to be published—and it will be.

Mr. Boateng

May I have the leave of the House, Mr. Deputy Speaker, to speak again?

Mr. Deputy Speaker (Mr. Michael Morris)

No, not tonight.

Question put and agreed to.

Resolved,

That the draft Maximum Number of Judges Order 1993, which was laid before this House on 21st January, be approved.