HL Deb 11 December 1924 vol 60 cc89-100

THE LORD CHANCELLOR rose to move, That an humble Address be presented to His Majesty representing that the state of business in the King's Bench Division requires that vacancies (not exceeding two) should be filled in the number of Puisne Judges of the King's Bench Division, notwithstanding that the number of those Judges amounts to fifteen or upwards, and praying that His Majesty will be graciously pleased to fill such vacancies accordingly in pursuance of the Supreme Court of. Judicature Act, 1910.

The noble and learned Viscount said: My Lords, I have now to move, [...] accordance with Notice, that an Address be presented to His Majesty the effect of which will be to authorise the appoint merit of two additional Judges. As your Lordships know, the normal strength of the King's Bench Division is fifteen Judges, in addition to the Lord Chief Justice. In 1910 the Cause List had got into such serious arrears that Parliament then authorised by Statute the, appointment of two additional Judges to the King's Bench Division, but added a proviso, the effect of which was that whenever the number of Judges was again reduced in number the vacancy should not be filled except on the presentation of an Address from both Houses representing that the state of business in the King's Bench Division required that such vacancy should be filled. From 1910 to 1913 the number of Judges was generally kept up to seventeen, but in the year 1913 it had been reduced by death and other en uses to fifteen. By that time the arrears had been reduced with the help of the two new Judges. No Address was then presented by Parliament, and the number continued at fifteen until the year 1920.

In the year 1920 the arrears in the Cause List had again seriously increased and Parliament presented an Address of this character, and two new Judges were again appointed. The number was kept up to seventeen until March, 1923, when Mr. Justice Bray died, and we then made an attempt to go on with sixteen Judges. But arrears again began to grow and before the late Conservative Government, of which I was a member, went out of office we had decided to ask Parliament to pass an Address for an increase of Judges under the Act. The late Government had decided to move such an Address this year and it would no doubt have been moved but for the Election a month or so ago. The question has again become very urgent and figures which I have examined slow plainly that it is only by increasing the number of Judges that we can get through the business of the King's Bench Division.

I will give your Lordships a few figures which will, I think, speak for themselves. At Easter, 1920, the cases on the List for trial in the King's Bench Division amounted to 888. At Easter, 1923, the figure, had decreased from 888 to 380. In March, 1923, the number of Judges fell to sixteen by reason of the death of Air. Justice Bray to which I have referred, and we went on with sixteen Bulges during that summer. At Michaelmas, 1923, the arrears had again risen to 731, and by Michaelmas, 1924, the cases on the List had risen to the very high number of 1191. I think your Lordships will see, therefore, that the time has come when the matter ought to be definitely considered, and that the figures show that an increased judicial staff is really necessary.

There are also certain special reasons which show that more Judges are needed. The list of divorce oases, although not quite so heavy as immediately after the Armistice, is still very heavy, the number of eases on the List for the Michaelmas Term being 913. The practice of transferring Judges from the King's Bench Division to the Probate, Divorce and Admiralty Division has been practically continuous. The King's Bench Division has for some time past almost always lent a Judge to the Probate, Divorce and Admiralty Division, and this year, during which one of the Judges of the Probate Division has been disabled by illness, two Judges have been transferred from the King's Bench Division to the Probate, Divorce and Admiralty Division. In addition, some divorce work, as your Lordships know, has been transferred, but even so the divorce work has grown to a very high figure. Then there is another factor. Trial by jury naturally takes a longer time than trial by a Judge and, as the House knows, cases in which trial by jury was dispensed with, the cases being tried by a Judge, greatly increased during the war. That process is now being reversed. Already jury trials are more frequent than they were and, if discussions which took place last summer bear fruit in a Bill which may be introduced in this Session, an approach may be made towards restoring the old system of trial by jury. In that case more judicial time will be occupied by trials in the King's Bench Division.

Further, as your Lordships know, the President of the Railway and Canal Commission is always a Judge of the High Court, and the work of that Commission has been very greatly increased by the passage of the Mines (Working Facilities and Support) Act, 1923. That Act committed to the Railway and Canal Commission certain new work, and that work has proved very substantial, with the result that a Judge of the King's Bench Division is occupied for much of his time in presiding over the Railway and Canal Commission. Then there has been a system, which I am afraid has not diminished in recent years, under which, whenever an Inquiry is desired by Parliament or by a Department and it is desired to appoint a Chairman of independent and judicial views, a Judge of the High Court or a Lord Justice of Appeal is chosen for the purpose. These Committees have taken away from their judicial work a great many of our Judges during the last few years. If your Lordships care to follow that point up you will find, in answers given to written Questions in another place yesterday, a list of Judges who have been so occupied.

The result of all this has been to throw very heavy burdens upon the King's Bench Division and to make it practically impossible for that Division, with its present staff, to carry out its work properly. Indeed, if it had not been for the assistance rendered to that Division by a member of your Lordship's House, I do not know how we should have got on. My noble and learned friend Lord Darling has, not only in the last sittings, but again in the present sittings, given a great deal of the leisure that he has fully earned and that he knows so well how to use, to the task of guiding and brightening the administration of justice in the King's Bench Division, and I am sure the country is very greatly indebted to him for his help in that direction. If it had not been for his help the arrears would have been even greater than they are to-day.

I must refer briefly to the question of cost. If you look into it you find that the cost which will be caused by the appointment of these two additional Judges is really trifling compared with the benefit which will accrue to suitors. The total cost of the two Judges will be £5,400 per annum each, or a total of £10,800 a year. But that sum must be reduced in more ways than one to get at the real figure. You must deduct Income Tax and Super-Tax, which are returnable to the State and which form, as your Lordships know, a very substantial item to-day. In addition, we must deduct the cost of the Commissioners of Assize. For years past the number of Judges available for Assize work has been insufficient, and the Lord Chancellor of the day has had to ask distinguished King's Counsel to act as Commissioners of Assize and assist the Judges of Assize in doing their work. That, in itelf, is costly. I will give your Lordships one figure to show what it means. In the financial year 1923–I fees paid to Commissioners of Assize amounted to £3,102. If you deduct from the £10,800, Income Tax, Super-Tax and this item of £3,102, you will readily see that the net cost of the addition which we require will not be great.

I will venture to make only a few more remarks. It is rather unfortunate that at every vacancy in the King's Bench Division an Address should have to be presented by both Houses. For instance, if your Lordships pass this Address to-day and it is also passed by the other House, and if a Judge were to resign next month, it would be necessary again to pass a similar Address, although it is plain that the need for the additional judicial strength will not have been removed in that interval. I think that this point needs to be looked into, and I propose when an opportunity occurs to ask Parliament to say that when an Address is once passed it shall take effect for some fixed period—say, a year—so as to give a chance of securing due advantage from the appointment of additional Judges.

I go a little further. I think we have now had enough experience of this Act to warrant us in considering whether some more permanent arrangement should not be made. I think the time has come when I should ask some competent Committee to go into the whole question, and to consider what ought to be the strength of the judicial staff both in the King's Bench Division and also in the Probate, Divorce and Admiralty Division. That Committee might also consider whether the present allocation of work between the Divisions of the High Court is quite that which it ought to be. However, that is a matter for the future, and I only refer to it today in order that it may be borne in mind. That project, of course, will not satisfy the immediate requirements of the High Court, which are very urgent. I think we all recognise that delay is the cause of great hardship to suitors, and in some cases amounts almost to a denial of justice. Believing that your Lordships take that view, I have no hesitation in moving the Motion standing in my name.

Moved, That an humble Address be presented to His Majesty representing that the state of business in the King's Bench Division requires that vacancies (not exceeding two) should be filled in the number of Puisne Judges of the King's Bench Division, notwithstanding that the number of those Judges amounts to fifteen or upwards, and praying that His Majesty will be graciously pleased to fill such vacancies accordingly in pursuance of the Supreme Court of Judicature Act, 1910—(The Lord Chancellor.)


My Lords, this Motion will no doubt be passed in another place. I have equally no doubt that it will receive your Lordships' approval. It has been stated by the noble and learned Viscount on the Woolsack that it was the intention of the Government before the last to lay the matter before your Lordships, and that the late Government was inspired with the same idea. Therefore there is not likely to be much opposition to the Motion, but none the less I think it would be unfortunate if a Motion of this importance were to be passed without some consideration. In 1912 a Motion was made in the House of Commons asking for the appointment of one additional Judge, and I opposed it on the ground that the whole circuit system required to be revised. There had been reports made more than once showing' that by a rearrangement and re-adjustment of business it would be possible for the then existing judicial strength effectively to cope with the arrears, and I asked the House of Commons to reject the Motion, until it was shown that the Government were prepared to deal with this matter. The Government gave the usual promises. I cannot, say that I was greatly taken in by them. I did not expect that anything would result, and nothing did, and nothing has resulted from that day to this, although twelve years have passed.

The present Government has an unrivalled opportunity. It has got a majority which will enable it to carry in another place almost anything which it desires, and in this House no reasonable proposal for re-adjustment or redistribution is likely to meet with much opposition. Therefore I would like to ask the Lord Chancellor, who says he is going to appoint a Committee for the purpose of seeing what re-arrangement of business can be effected to secure the more efficient conduct of judicial business, whether he intends to include the circuit system or not, because upon that inclusion the whole matter depends. These appointments are to be made to the King's Bench Division, and it is the King's Bench Division which is regularly decimated by the demands for Judges to go on circuit. As your Lordships know well, there are circuit towns where there is practically no business whatever to transact, but into which, none the less, there is the whole of this solemn paraphernalia of the Judge travelling in and holding Assizes although he has got nothing to do there.

I had not got the recent returns with regard to the business at circuit towns. I was unaware until late last night that the Motion was coming on to-day; otherwise I would have tried to get them up to date. I notice, however, looking back to what I said in 1912—and I do not suppose there is very much difference now—that there were fifty-six towns in which civil or criminal cases were to be tried at the Summer Assizes in 1905, and of these there were seven in which no civil cases were tried at all, four in which one only was tried, ten in which there wore only two cases, and thirty-seven in which there were no more than five tried, while there was one town in England in which there had been only one case in the last five years. I have no reason to doubt that if you examine the records of to-day you will find similar results, and they will continue until some Government has the courage to re-arrange the circuit system.

The reason it has not been done is this. If you attempt to group the business in any particular area in the town that is now the thriving centre of commercial life of the area, all the other towns whose rights and privileges are taken away protest through their Members of Parliament, and make such a fuss that it is practically impossible to change matters. I remember the case of Huntingdon, close by Cambridge. Huntingdon resented bitterly the taking away of its Assize business, and the giving of it to Cambridge, and yet to have continued the old state of things would have been perfectly ridiculous. The life of the community has grouped itself round centres which were not the centres when the circuit system was established, and it has become essential, if you want to get the best out of the men appointed as Judges, that you should see that the circuit system, if maintained at all, is maintained at the least cost and inconvenience to the men who have to take part in it.

An occasion like this is about the only occasion on which it is possible to call attention to difficulties of that kind, and to ask for redress, and I should protest against, and oven go so far as to ask the opinion of the House upon, any proposal that will remove from the consideration of both Houses these questions of the appointment of additional Judges. If your Lordships were to agree to such a proposal you would divest yourselves of a very valuable privilege, which at certain moments might become of very great consequence indeed, and I hope that the noble and learned Viscount will not pursue his proposal to suggest that this matter should be taken outside your Lordships' jurisdiction.

Finally, let me say that I think that the three great blots upon our system of the administration of justice are delay, cost and uncertainty. The delay is not nearly so grave as it was. It is always a mischief, it is often a grave oppression, but I do not think it exists so much now in the Courts of First. Instance as it formerly did, and I am quite satisfied that it is capable of being remedied. I think that the effort this Motion makes will immediately remedy it. That is within the power of the Legislature to put straight. But there are other forms of delay that in their way are just as oppressive. I do not know why it is, but it is the fact that cases have tended to indefinite prolongation in the Courts, and take much longer being heard now than they used to do twenty and thirty years ago. It is particularly true of cases relating to trade inventions, and it is certainly a grievous hardship that a litigant may be brought before a Court and involved in a lawsuit, in which, even if he succeeds, if he be a man of humble means to start with, he stands the risk of being ruined; and that is the case to-day. I do not quite know how that is to be met, but I am satisfied that, if you think the only abuse connected with our administration of the law is delay, you will be overlooking something which, to my mind, is even more grave.

With regard to uncertainty, that must always remain, but I do think that the uncertainty of our law has been slowly getting less and less. I am convinced that it is possible for people to speak with far greater confidence to-day as to the result of litigation than it was when I was called to the Bar. And I believe that that will go on. I think that, as matters get simplified and principles get more clearly enunciated and the law made more intelligible and plain, as I think it is getting day by day, the uncertainty will be, as far as possible, removed. It is not to-day in this country anything like what it is anywhere else, and we have, I believe, the finest system of procedure known to any country in the world.

I have occupied your time for a few moments in discussing what may seem to be a purely professional matter, but it is a professional matter which leads up to a subject in which every one of you is deeply interested, and the preservation and maintenance, of which, I am sure, you would gladly secure. I always look back to a statement I read in an old book about people who came to this country in the eighteenth century. It was said that the thing they came to see was not our big shops or our big manufactories, not even our Army and our Fleet; the thing that impressed these visitors, and which they were most anxious to witness, was the administration of the King's justice in Westminster Hall.


My Lords, it was a relief to me to listen to the speech of my noble and learned friend Lord Buckmaster, who is going to support this Motion. I had some fear after the declarations of my noble friend Lord Beauchamp, who leads the other Opposition on the principle of opposing everything, that there might be opposition to the present proposal. Lord Buckmaster had a better title to speak, because my noble and learned friend Lord Darling is not the only member of your Lordships' House who has rendered great services recently in the Courts of First Instance. Lord Buckmaster has sat, I think, not only as Judge of the Chancery Division, but as a Judge in the Divorce Court, and therefore he of all people is entitled to speak with direct knowledge of what is going on in these Divisions.

I listened to what my noble and learned friend said about the circuits. I entirely agree with him. The matter engaged my attention when I occupied the Woolsack, and what we were, brought up against was the number of Members in the other House who desired to have a Red Judge continuing to visit their constituencies. It is not the civil business—my noble and learned friend spoke as if it were the civil business—it is the criminal business, with all the paraphernalia of the Judge coming there to try, perhaps, two offenders, or to receive, perhaps, a pair of white gloves, that attracts the populace in those regions. We could not touch that in the House of Commons, because we had not numbers enough, but we did touch it indirectly by bringing in two Bills, which passed your Lordships' House, and under which the Quarter Sessions may dispose of a number of cases that have hitherto gone to Assizes, and the task of Assizes in both criminal and civil business will be somewhat lightened.

I quite agree with Lord Buckmaster that the true remedy is to consider the circuit system. In some cases you have a difficulty in supplying judicial strength for the circuits. Liverpool and Manchester nowadays take up an enormous amount of the Judges' time, but there are other places in which, as he said, the Judges are really not wanted, and the business ought to be done either by being transferred to London or to a neighbouring Assize town, or by the county courts, with the extended jurisdiction and the new organisation which is conferred upon them by the Act which was passed this year. I do not think that reform of the circuits will do everything. We want it, and it will leave more time free, but it will not meet the whole evil. I think the Lord Chancellor has demonstrated that more Judges and a considerable addition to the present judicial strength are required if the evil that exists to-day is to be got rid of. I was called upon to go rather closely into this matter when I occupied the Woolsack, and I found the state of things a deplorable one. Whenever a Judge was ill—and Judges, like everybody else, are apt to fall ill—there was a shortage in the work. We had to appoint Commissioners, we had to transfer cases to Judges who were already overburdened, we had to resort to every shift and expedient to get the judicial business done; and even then the business was piling up. People do not realise that we have at present very much the same number of Judges that we had in the time of James I, and yet the business has increased enormously. Under these conditions it is obvious that the time has come to reconsider judicial strength.

The money element, as the Lord Chancellor pointed out, is very little, but the importance of getting the cases properly heard by proper Judges, and not having the condition of things, the chaos, that obtains in the King's Bench Division at the present time, is very great. I myself had to go into this matter at length when I occupied the Woolsack on a former occasion in 1912. There was then a Commission presided over by the late Lord St. Aldwyn, than whom there was no shrewder investigator, who looked into the whole matter, and the Commission found, as I found, that under ordinary circumstances there is a considerable margin of elasticity in the work the Judges do. They can, by arrangement, get through a great deal, and it is not necessary really to expect of them more than five days a week. If they sit five days a week they have done about as much as they have the strength for. Your Lordships who have not got to do it do not realise what it is to sit, as I have been doing to-day, and have been doing during the whole of the past week, and shall be doing next week, from half-past ten to four, presiding over the hearing of appeals here, and then coming to do the business of this House.

You cannot expect Judges to do that, or even more, and at the same time to look after their work properly. Those who sit in the Court of Criminal Appeal have got to read the papers, and some of the judgments have to be written, and five days a week is enough to ask of any man to sit in judicial business, if you expect to get the best of his strength and application for it. That is a condition of things which at the present time does not dispose of the business. Even making all the reforms which Lord St. Aldwyn's Commission considered necessary, you cannot get over the difficulty. People say: "Sit in the Long Vacation." But Judges sit in the Long Vacation now for whatever business is ready for them. Suitors do not bring business in the Long Vacation excepting to a limited extent. It is not convenient for them they are otherwise engaged. So far as I know the strength of Judges available is enough for the Long Vacation business, but you would not save anything by putting more business into the Long Vacation because you could not get that business put through. Under those conditions there is nothing for it but to recognise that we have reached a time when more Judges are required.

The noble and learned Viscount on the Woolsack alluded to another cause which has increased the demand. Whenever a Question is asked in either House of Parliament about which there is likely to be some division of political opinion and a Committee is desired to investigate it, it is the custom to say: "Put a High Court Judge or a Lord of Appeal at the head of the Committee." That is a very convenient course, but it encroaches some-what heavily upon the judicial strength and I think provision must be made for that as well as for the illness, which is always taking place, of one or other of the members of the Judicial Bench. In those circumstances I came clearly to the conclusion during the period in which I last occupied the Woolsack that we were driven to an increase, and the Government actually gave notice of the very Motion which my noble and learned friend is proposing on this occasion. Therefore, I give him my warm support.


My Lords, I wish to refer in a very few words to the point which my noble and learned friend put to me. He asked me whether, in connection with the other matters I mentioned, I had considered the rearrangement of the circuits. No one knows better than my noble and learned friend that he is opening there a rather thorny question for any Government. I was interested that he should refer to it in the manner in which he did because, as no doubt he knows, so soon as ever a re-arrangement of the circuits is suggested opposition comes from a number of places. Among others it comes in great strength from those places in North Wales and Mid-Wales where there is very little business indeed for the Assize Judge who goes down there. My noble and learned friend has more influence than I have with some of the Members for Wales. My noble and learned friend asks me, Why? He at all events can use his persuasive power with the Leader of the Liberal Party in another place and no doubt we shall ascertain in that way what is the feeling in those Assize towns in Wales which might be threatened by a re-arrangement of the circuits.

It is also the fact, as the noble and learned Viscount has just said, that in the Criminal Justice Bill which your Lordships discussed in 1923 at my instance and again passed in 1924 at the instance of the noble and learned Viscount, there is a clause transferring to Quarter Sessions part of the business of the Assizes. But there was also a clause in the Administration of Justice Bill which is very relevant to the point made by my noble and learned friend Lord Buckmaster. It was proposed by that Bill that where there was no substantial business forthcoming for an Assize it should be in the power of the Lord Chief Justice to dispense with that Assize and so save all the time which a Judge would lose by going to an Assize town and either receiving white gloves or trying some trilling case which might have been sent to Quarter Sessions. I believe that clause alone, if Parliament should adopt it this year, would save some of the time which is wasted at Assizes. But I do not stop there. I am willing to consider the whole matter and to see whether anything more can be done to prevent any loss of time under the Assize system. I think that really deals with the point made by my noble and learned friend.

On Question, Motion agreed to, and Address ordered to be presented to His Majesty by the Lords with White Staves.