SUPREME COURT OF JUDICATURE (AMENDMENT) BILL. (Hansard, 15 February 1944)

§ THE LORD CHANCELLOR (VISCOUNT SIMON)
My Lords, I beg to move the Second Reading of this Bill, which comes to us from the Commons, where it has been pasted by unanimity and without amendment. The object of the Bill, as its title shows, is to regulate and, indeed, to increase the number of puisne Judges of the High Court and to regulate the attachment of such Judges to the several Divisions of that Court. I hope that I may be so fortunate as to receive the general approval of your Lordships' House to the measure. By puisne Judges, of course, is meant High Court Judges, excluding the heads of the Divisions—the Lord Chief Justice or the President of the Probate, Divorce and Admiralty Division, and, of course, the Lords Justices of Appeal.
At this moment there are twenty-six puisne Judges of the High Court distributed among the three Divisions, the King's Bench, the Chancery and the Probate, Divorce and Admiralty Divisions. Without any alteration of the Statute Law, it would be possible to have three more Judges added to the twenty-six. Two of these might be added to the King's Bench Division, upon a Resolution of both Houses of Parliament, if the state of business in that Division was such that it required the addition of those Judges. Another Judge might be added to the Chancery Division—again without any fresh legislation—if the state of business there required it, and in that event there would be no Resolution needed from either House of Parliament, but the consent of the Treasury would be required to the Lord Chancellor's proposal. Your Lordships see, therefore, that although the actual number of puisne Judges is twenty-six, in certain circumstances it might become twenty-nine. The difficulty is that 758 the circumstances which mainly require us to get more Judges do not arise at present in the King's Bench Division or in the Chancery Division, but in the Probate, Divorce and Admiralty Division. As is well known, they arise because of the congested state of the divorce lists.
I appointed, some time ago, a Committee which was presided over by Sir Ralph Wedgwood and contained a number of persons skilled either in business or in the law, to report to me what was best to be done in connexion with this most unhappy and regrettable crowd of divorce cases waiting to be tried. The situation is really a very serious one, for I think there are something over 3,000 cases in the list waiting to be tried in the Divorce Courts at this time. The Committee made a unanimous Report, and amongst other things they proposed that contested divorce cases should be capable of being tried on circuit. As things are at present, all contested divorce cases have to be tried in London, unless they are cases in which a poor person is concerned; and of course these are much the longer and more difficult cases. I take the strongest possible view that there ought to be facilities for trying contested divorces cases in the provinces. It seems to me utterly wrong to compel people, who are often of small means, to make the necessary arrangements to come to London to have their domestic tragedy dealt with and disposed of. It is easy enough in the case of the rich, but for poorer people it is often so great a handicap that it prevents them from getting their rights.
In my view there is all the more justification for insisting on this when we consider the character of the dispute. In ordinary cases it arises in the locality where both the parties live. They will have lived there in the same home and in the same town. The evidence in most cases comes from that locality. They consult solicitors who are solicitors in that town. It seems to me a most serious failure in our claim to make justice what it ought to be if we say: "We do not care anything about that; if you want to fight your case you must come to London, and instruct London solicitors and counsel into the bargain, and incur all the extra expenditure of bringing witnesses there." I therefore welcome this Report of my Committee most heartily; and, as I have said, it was unanimous. I want to put it into force.
759 Although by an order signed by the Lord Chancellor it could be provided that contested divorce cases should be tried on circuit—because it is not a statutory restriction—no good result would follow if I did make such an order because we have not enough Judges to try the cases. Therefore I have been driven to the conclusion—and I think that it is supported by a very large body of opinion—that we ought to have in the circumstances, and promptly, more Judges to try divorce cases. I may tell your Lordships that in my own view of the matter, if the Treasury approves, there ought to be three more. I have therefore taken the opportunity in this Bill to deal with this matter. I think that it is a bad plan which says that you have to judge of the need of an addition to the Judiciary by waiting until you can prove that in the particular Division of which you are talking there is such a mass of 'arrears as manifestly to justify a new appointment. It is much better to have a proper number of Judges appointed, not after there has been a great accumulation of arrears, but when it is reasonably seen that more Judges are needed in order that justice may be prompt—which is one of its most important features.
I think, too, that as far as that can reasonably be done there is an advantage in taking the view that a High Court Judge is all the better for having as wide an experience as possible. A Judge who goes circuit has all sorts of cases to try. If a divorce Judge went circuit he would, of course, take primarily all the divorce cases, but he might, on occasion, take work coming from other branches of the law just as every High Court Judge going circuit has now to take divorce work. The proposal contained in this Bill is therefore twofold. First of all, I propose that we should increase the full establishment of High Court Judges to 32. At present it is 29. I further propose that we should not increase the number which, as I have said, is now 26 (speaking of puisne Judges alone) save with the approval of the Treasury who will require to be satisfied that the addition is really necessary. I think that that is a better method than requiring on each occasion, as is the case with King's Bench Judges, a Resolution from both Houses of Parliament, because that means that there has 760 to be a sufficient degree of arrears accumulated to satisfy Parliament that the addition must be made. If Parliament is prepared, as the House of Commons has shown itself prepared, to say that the statutory establishment shall be 32 but that up to that limit appointments will be left to the proper authorities—the Lord Chancellor, who makes the proposal to the King, and the Treasury, who have to approve the suggestion—that is the better course. As I have said, what I should like to do now—and I believe it to be very much in the interests of many people who are waiting to have their rights in the Divorce Court—is to add three Judges who would primarily undertake divorce work.
The other provision is of a minor character but it is one to which I wish to call attention because I think that it has aroused anxiety in some quarters. The requirement to which I refer is to be found in Clause 1(4): A puisne Judge of the High Courts may be transferred by direction of the Lord Chancellor from one "of the Divisions of that Court to another: Provided that no direction shall be given for the transfer of a puisne Judge from the King's Bench Division, or from the Probate, Divorce and Admiralty Division, without the concurrence of the President of that Division. The reason that the Chancery Division is not mentioned there is that the Lord Chancellor is the head of the Chancery Division. It has been suggested to me that in that form of words it might appear that the transfer of a Judge from the Division to which he is attached to another Division would be a matter which could be carried through without consulting the Judge himself and without obtaining his consent. I agree that the words as they stand are capable of suggesting something of the kind, although nobody who knows the way in which we really manage our judicial institutions would ever suspect any Lord Chancellor of doing anything so foolish; he would never, of course, ask a Judge who was attached to one Division to transfer to another and come under a new chief, unless he found that the Judge in question was willing that that should be done. But, sooner than that there should remain in any breast the smallest suspicion on the subject, I should propose, if your Lordships agree to the Second Reading of the Bill to-day, to put in a couple of words in Clause 1(4) to 761 show that the consent of the Judge should also be obtained.
That is the nature of the Bill, and I hope that what I have said will convince your Lordships that it ought to be passed. What I would hope to do, as soon as the Bill receives the Royal Assent, is to make the necessary new order which would enable contested divorce cases to be tried in the country. I believe that that would afford a very great relief from what is at present a real injustice. I should do it with the knowledge that I should get some additions to [...]udicial strength. The proposal would be to send round to the principal Assize towns a divorce Judge who would undertake what is often the very heavy list of undefended cases, together with, it may be, the much more limited number of cases that are defended. Some assistance of that sort is needed by the ordinary Judges of Assize in the larger towns. There have been times when the ordinary Judge of Assize, engaged in trying crime and local commercial and civil cases, feels that a burden is put upon him greater than he can bear if he is asked to dispose in addition of a large number of uncontested divorce cases. Under the new system both contested and uncontested divorce cases would be tried in the country—there would be the necessary additional judicial strength for that purpose—and they would also be tried in London. Judges dealing with divorce would have to remain in London for the purpose. I hope that this scheme, with the small amendment that I have suggested, will be regarded as a useful development of the law and that we shall very soon be able to put it into practice.

§ VISCOUNT CALDECOTE
My Lords, I need hardly say that I do not desire to object to the provisions of this Bill; indeed I may go further and say that, particularly in view of what my noble friend or the Woolsack has said as to the insertion of words requiring the consent of the Judge proposed to be transferred, I respectfully welcome and support the proposals contained in this Bill. I think my noble friend made one observation in the earlier part of what he said suggesting that circumstances did not require the appointment of a Judge so far as the business of the King's Bench Division was, concerned. But I respectfully 762 wish to call attention to one aspect of the matter which I think perhaps my noble friend had for the moment forgotten. Nobody can say how many contested divorce cases after the change has been made will be set down for trial in the provinces: it may be a large number, it may be a small number. But, judging from what I have understood, I think from my noble friend himself, the volume of additional work thrown upon the Judges of Assize will be considerable.
The fact is that at the present time, even with undefended cases and defended cases which are poor persons' cases being tried, the strain upon the Judges who go circuit is very great. Until the present volume of divorce petitions arose we expected for instance towards the end of July—about the second or third week in July—that all the Judges out on circuit would be back in London and available to make a concerted attack upon the list of cases awaiting trial. In consequence of the large volume of divorce cases requiring their attention when they go circuit it is seldom the case that a Judge of Assize returns to London until the very eve of the long vacation; indeed it constantly happens that a number of the Judges of Assize remain completing their work on Assize until the first or second week in August. If these cases are to be added to the work to be done by His Majesty's Judges on Assize it really will be necessary to supply the King's Bench Division with additional Judge power to dispose of these cases, otherwise there will be an accumulation and a difficulty in fixing the dates of Assize, which is already experienced by the Judges of Assize. Perhaps my noble friend—I am sure he will—will bear that in mind if and when it comes to the time that he will have to consider the use to be made of the three Judges whom he tells me it is his intention to appoint if this Bill goes through.

§ THE LORD CHANCELLOR
To recommend His Majesty to appoint.

§ VISCOUNT CALDECOTE
I am much obliged to my noble friend for the additional words which he proposed to insert requiring the consent of the particular Judge in question. It is none the less, I think, desirable that the assent of the head or the President of the Division from which the Judge is being transferred should be obtained, if only from the point 763 of view of the disposal of the work for which primarily the Lord Chief Justice is responsible. As long as my noble friend is on the Woolsack and I have the honour to continue to hold my present position I do not think there is likely to be any contest between us, and I hope I may not be here when any difference exists between the Lord Chancellor and the Lord Chief Justice. I think that the words he proposes to add will be generally welcomed by the Judges of the King's Bench Division. Perhaps I may say this further word. A number of duties are now being performed by Judges of the King's Bench Division which take them from their ordinary duties, so that it is not to be supposed that they can bear any further burden without additional Judge power to help them discharge those duties. Let me say that the Judges of the King's Bench Division, as I know from inquiries which I have made, are of course prepared to shoulder any additional burden that may be thrown upon them, but they will welcome the assistance of one or more of the Judges whom the Lord Chancellor proposes to appoint.