§ THE LORD CHANCELLOR (VISCOUNT SANKEY) moved, That an humble Address be presented to His Majesty representing that the state of business in the King's Bench Division requires that two vacancies in the number of Puisne Judges of the King's Bench Division should be filled, and praying that His Majesty will be graciously pleased to fill such vacancies accordingly, in pursuance of the Supreme Court of Judicature (Consolidation) Act, 1925.
§ The noble and learned Viscount said: My Lords, permit me first to state that the Lord Chief Justice, who is unfortunately unable to be present here this afternoon, asks me to say that he agrees with this Motion. On February 16, 1932, and again on May 9 of last year, similar Resolutions were passed by your Lordships, but the promotion of Mr. Justice Roche to the Court of Appeal and the retirement of Mr. Justice Acton leave two vacancies which, as your Lordships are aware, can only be filled if Resolutions are passed to that purpose by both Houses of Parliament. Your Lordships are so familiar with the provisions of the Statute that it is not necessary to dwell longer upon them now, further than to point out that by reason of the necessity for the passing of these Resolutions the 57 gap left by Lord Justice Roche's promotion has now remained unfilled for a month, that is to say, for more than one-tenth of the legal year, and that caused by Mr. Justice Acton's retirement has remained unfilled for half that period. Nor ought your Lordships to be troubled with a detailed recapitulation of the figures which justify the passing of this Resolution. The statistics showing the situation as it is to-day do not differ widely from those to which the attention of the House was directed both in 1932 and in 1933. Since the close of the War we have had ample experience of the course which litigation in the Supreme Court takes, and we can draw from it certain definite deductions. In their nature they cannot be fixed principles. As years go on circumstances may alter, but for the last sixteen years there has been no sensible variation in the flow of litigation sufficient to justify any decrease or, but for certain other matters to which I must shortly allude, any permanent increase in the Judiciary.
§ From this experience two definite facts emerge. When the Judicial Staff of the King's Bench Division has been maintained at the higher figure of one Lord Chief Justice and seventeen Puisne Judges that staff has been sufficient to cope with the work and to reduce whatever arrears might be outstanding. When that judicial strength has been allowed to fall to the lower number of one Lord Chief Justice and fifteen Puisne Judges arrears have again begun to accumulate. This seems a sufficient justification for the moving of this Resolution, and for its passing by this House; but it appears to me to lead to a further conclusion. It is desirable that Parliament should at all times be fully aware of the state of business in the Courts, and the manner in which that business has been discharged. But when the permanent need for the larger staff has once been established, as it has now been, it is extremely inconvenient that recourse should continually be had to Parliament upon the recurrence of each vacancy. As I have already pointed out, the delay in filling the two present vacancies, owing to the fact that Parliament was not in Session when they occurred, has deprived us of the services of two Judges for a period which, in all, amounts to some six weeks of judicial time—a serious loss when a large body of arrears 58 is outstanding. It is right, therefore, to tell the House that the Government, having considered this question, proposes at an early date to submit proposals to Parliament whereby this number of eighteen, which is at present provisional and only maintained upon Resolutions, will become permanent, and the constant recourse to Parliament will be avoided.
§ But in the judgment of His Majesty's Ministers that alone will not be sufficient to meet the difficulty with which we are now faced. During the last ten years there has been no great variation in the number of writs taken out in the King's Bench Division. The highest figure in any one year was in 1922, when, roughly speaking, 61,000 writs were issued. The lowest year was 1928, when there were slightly over 48,000. The general average for those years is nearly 56,000, but in the year 1933 53,000 were issued, a figure slightly below the average of the whole period. The body of the work, therefore, which comes through to the King's Bench Division is neither increasing nor, on the average, greatly falling off. Furthermore, during the last few years steps have been taken to expedite litigation. In the year 1933 and again this year ten days of the Long Vacation were sacrificed for this purpose. In 1933 also, by Statute, the right of a litigant to a trial before a jury was modified, with the result that in the last nine months there has been a large reduction in the number of cases tried with a jury and an increase in the number of cases tried by a Judge alone, which does not occupy so much time. Let me here observe that this change has proceeded without mischief and without complaint from either branch of the profession, or from litigants generally.
§ Steps have also been taken in other ways with which I need not weary your Lordships, to assist the despatch of business, and it was a reasonable expectation that the result of these changes would have been that the Judicial Staff maintained at the figure of eighteen would have been able, not only to cope with the work, but to reduce substantially the volume of arrears. The alarming feature of the situation is that this result did not follow. The number of cases pending at the end of the year increased gradually through the years 1930, 1931, and 1932, until in the last-named year it had attained the figure of 1,253 cases waiting for trial. In 1933 there was a reduction 59 in this figure, that is to say, the Judicial Staff of the King's Bench Division were able to deal with an amount of work equal to that entered for trial in the year and, in addition, somewhat to reduce the arrears which they found standing at the beginning of the year.
§ But I regret to have to inform your Lordships that the figures of the present year are most discouraging. It would appear from them that during those nine months, although during the whole of that period the beneficial effects of the alteration of the system of trial by jury were in operation, no real progress was made in clearing off arrears. It is impossible to contemplate a situation in which this mass of arrears remains standing and not reduced, and apparently irreducible. His Majesty's Government have therefore decided that further judicial strength must be supplied, to be employed with the strength already in existence in dealing with the whole volume of work in the King's Bench Division until the arrears have been completely wiped off. They see no other remedy for this state of things except the creation of two additional Judges. And therefore in the Bill, which will be presented to Parliament as early as possible after Parliament has reassembled at the close of the next short period of Prorogation, we shall include a proposal for the appointment of two additional Judges of the King's Bench Division. We do not propose that this addition should be permanent. In our opinion the judicial strength thus increased should be able, within a comparatively short period, to wipe off the arrears and to inaugurate a system under which the litigant, when he is ready for trial, can obtain a hearing within a reasonable period. The provisions, therefore, of the present Statute, which require that the seventeenth and eighteenth judgeships can only be filled on Resolutions, will in the measure which we shall introduce, be rendered applicable to the new nineteenth and twentieth Judges.
§ It is right that Parliament, when being asked to pass the present Resolution, should know fully what are the immediate intentions of the Government in this important matter, and in moving the Second Reading of the proposed Bill later on I shall be prepared, if required, to go at greater length into the matter. But 60 there are one or two general observations which I must make. It is only with the greatest reluctance that the Government have reached these conclusions. The additional expense involved in this proposal amounts to a charge upon the Consolidated Fund of the sum necessary to pay the salary of the two additional Judges—£9,000 a year as it now is—together with a charge upon the money voted by Parliament of £1,020 for the salaries of two Judges' clerks. It may involve additional charges, for it is possible that while the two extra Judges are in office additional work will fall upon the Masters and upon the clerical staff employed at the Royal Courts of Justice. These figures are not of such magnitude as to cause us to hesitate in the face of a proved necessity. Even if they were, such an expenditure of money as is necessary for the proper despatch of judicial business justifies itself. We look with jealousy at every penny which is expended. But if we are assured—as we are assured in this case—that the expenditure will go to maintain the system whereby society is held together we must not hesitate to incur it.
§ My reluctance proceeds on wholly different grounds. In the first place the duty of organising a staff of any kind increases with the size of the staff. I have often wondered whether, whatever other advantages were gained by the fusion which followed on the passing of the Judicature Acts of 1873 and 1875, something was not sacrificed when the three old Common Law Divisions—each compact and under the charge of a leader—were thrown into one Division. However that may be, we must recognise the difficulties and necessities which must press upon anyone who is responsible for the work of nineteen Judges. Beyond this difficulty of organisation lies one of principle. The maintenance of the prestige of the Judicial Bench is an essential feature of our jurisprudence. There is no parallel in the civilised world to the authority which a Judge of the High Court possesses when sitting in his own Court. On that depends the discipline of the Bar and the maintenance of those traditions of fairness and impartiality between man and man which are the foundation stones of our system. The system in itself and, as we know it, with all its faults, is vital to the administration of justice in this country, 61 and there never has been a time in the country when the respect for law and order was more necessary, and when therefore there was more necessity to maintain the prestige of the Judges.
§ We have been extremely fortunate in the past in the character and learning of those who have been elevated to the Bench and in the reputation which they have enjoyed both among the two professions and among the public at large. There is no reason to fear that we shall not be equally fortunate in the future. But I cannot conceal from myself or from you, my Lords, my belief that the prestige of the Judges has been largely due to the small numbers of the Bench itself and to the very high standard which those who were responsible for advising on the appointment of Judges have therefore been able to maintain upon the occurrence of each vacancy.
§ Any increase of numbers must so far as it goes tend somewhat to lower the quality. The judicial faculty is not one which is possessed by all men, and is not necessarily to be found among the more brilliant advocates at the Bar. It is peculiarly difficult to predict beforehand of any given man that he in fact possesses it. All one can do in advising a selection is to scan the record of the man and to estimate his character as it has been disclosed in his long professional career. But a man to be appointed to the Bench should not only possess this judicial faculty in a high degree but should have in addition learning, experience, and the respect of his professional brethren. He must also be between certain somewhat narrow limits of age. There cannot be expected to be found at the Bar at any given moment an unlimited supply of men of the right age, of the right experience, and possessing the other qualities which I have enumerated. The position is not rendered easier by the financial circumstances of the present time. Most men at the Bar who come within the circle from which a selection can be made are patriotic and willing, even at a financial sacrifice, to undertake the high calling of a Judge. But one cannot put out of one's mind the disproportion which now exists between the salary of a Judge and the income which may be earned by a King's Counsel in large, or even in moderately large, practice.
62§ I have thought it right to put these considerations on record. They have formed matters for anxious thought before this matter was laid before my colleagues. But weighty as they are I am forced to the opinion that they do not outweigh the reasons for an increase in the Bench on this particular occasion. Taken, however, with the other circumstances they do appear to His Majesty's Government to furnish a reason for a further step to be taken in conjunction with the positive measures with which Parliament will be asked to deal during next Session. In the last few years Committee after Committee has, with anxious care, examined the work of the Courts with a view to ascertaining what economies, either of money or of time, can be effected, and effect, statutory or otherwise, has been given to many of their recommendations. But we think that it would not be right to undertake the business I have foreshadowed if we did not at the same time enter upon a further examination of the situation as it is in the King's Bench Division and as it ought to be. We propose immediately to institute a formal inquiry into the situation in the King's Bench Division, asking those who undertake it to make such recommendations as they may think right. Recent inquiries have been conducted by lawyers alone. We think now that for the present inquisition we need in addition the authority of some layman who possesses the confidence of the outside world.
§ My excuse for occupying so much of your Lordships' time, and it may be my justification for so doing, is two-fold. First, the Government have desired to take Parliament in the fullest sense into their confidence in this matter; and secondly, after a long life spent in the practice of the law, I have come to regard these matters as of the highest importance to the welfare of the country at large, to the honest despatch of business transactions, and to the firm administration of the criminal law. I beg to move.
§ Moved, That an humble Address be presented to His Majesty representing that the state of business in the King's Bench Division requires that two vacancies in the number of Puisne Judges of the King's Bench Division should be filled, and praying that His Majesty will be graciously pleased to fill 63 such vacancies accordingly, in pursuance of the Supreme Court of Judicature (Consolidation) Act, 1925—(The Lord Chancellor.)
§ On Question, Motion agreed to, and the said Address ordered to be presented to His Majesty by the Lords with White Staves.