APPELLATE JURISDICTION BILL. (Hansard, 20 February 1947)

THE LORD CHANCELLOR
My Lords, I invite your Lordships to give this little Bill a Second Reading. There are two aspects of the law with which I am now very much concerned. One is the cost of litigation and the other the law's delays. I hope soon to be able to make some observations to your Lordships with regard to the cost of litigation, but this Bill is primarily to help us to get rid of the delays in litigation in the ultimate court. At the present time there are seven Lords of Appeal of whose services we are entitled to make use. Of the distinguished people who have held high judicial office there are several of whose services (owing to reasons of health or age or some other cause) I am in practice able to avail myself to only a very small extent, with one notable exception. I should like to take this opportunity of saying how grateful we are to the noble 847 and learned Viscount, Lord Simon, for the untiring way in which he has put his services at our disposal in helping to deal with the judicial business of this House and that of the Privy Council.
I am sorry to say that I myself have been rather truant. The long and short of the matter is that my engagements of another kind are so manifold that it is really impossible for me to give adequate time—although I should like very much to do so, because I think it is most important that the Lord Chancellor should—to the discharge of my judicial duties. In the result, save that I have on occasions had other help which I gratefully acknowledge—it has been only occasional—I have seven Lords of Appeal and the noble Viscount, who makes the eighth, to attend to the judicial business of this House and of the Privy Council. In the Privy Council the number of cases in which the Lords of Appeal are required to sit is increasing, and the number of cases in which five Judges are being asked to sit is also increasing. So far as Dominion appeals are concerned it has now become the understood practice that the Beard shall consist of not less than five Judges, each of whom is a member of your Lordships' House. Your Lordships will, therefore, see that it is quite impossible for me, when I have to constitute a Board of that sort for the Privy Council, to arrange for sittings simultaneously in your Lordships' House. The result is that there has been some delay in hearing appeals, and although I certainly do not want to appoint an unnecessary number of Judges, yet I would much rather have too many Judges, although they might be sometimes idle, than that litigants should be subject to delays in having their cases heard.
The figures which I have show that in the last year—1946—the length of time between setting down the case and the hearing of the case in your Lordships' House was, on the average, eight and a half months, and the length of time between presentation and setting down was, on the average, three and three-quarter months. Of course, the time between presentation and setting down rests with the parties, and is no concern of ours. But it means that the average case cannot be heard until slightly over a year after 848 it is presented. That is worse than it has been before, except in one year, 1936, when the delay, for some reason, was eight and three-quarter months. It has never been so bad as that. I have the figures since 1927. At one time, in 1929–1930 it was down to under four months. I feel, therefore, that I have no option but to introduce this Bill and to ask your Lordships to pass it, so that I can appoint two additional Lords of Appeal, thereby making the number nine instead of seven. Those additional Lords of Appeal are to be appointed only if I certify, with the concurrence of the Treasury, that the state of business is such as to require the extra Judges. It is a very small Bill, and it proved completely non-controversial in another place. I am quite sure that your Lordships will so regard it, and will allow us to have it. I beg to move.

§ VISCOUNT SIMON
My Lords, perhaps I may be allowed to add a few words in support of this Bill. I speak from experience, first as Lord Chancellor and also, as the noble and learned Viscount on the Woolsack has been kind enough to say, since then, when I have continuously been available to preside over one or other of these two tribunals when, unfortunately, the Lord Chancellor himself—for reasons which we all understand—much as he would have wished to preside, has been compelled to be absent. The work of the House in its judicial aspect is naturally not very closely watched by other members of the House, although it is a sitting of the House of Lords and any member of the House may come in—as noble Lords occasionally do—and attend the hearing of a case. It is, in fact, an arduous business. I think—and I believe the noble and learned Viscount the Lord Chancellor will agree with me—that appeals to the House of Lords (that is to say, appeals from the Court of Appeal in England, the Court of Appeal in Northern Ireland or the Court of Session in Scotland) almost invariably require five members of the Court to be present. Obviously, it is much better to have an odd number in case of a difference of opinion, because, in the last resort, the decision is by majority.
849 There is, however, a curious and interesting rule, that if, by any chance, the number of legal members of the House hearing a case is four, and they divide two-two, a decision is reached by affirming the decision of the Court below. That is not a very satisfactory way of disposing of what may be a very important issue, so I take it that live of us must sit, as, in my experience, we do. It is very heavy work, not merely because we all have to keep attentive, not to say awake, and listen to what are often very complicated arguments, with references to books, but also because there is another part of the work which is not done in the presence of anybody at all, and that is the business of writing the opinions which we ultimately pronounce and Which will decide the law on the subject for the future, unless Parliament subsequently enacts otherwise. It is, therefore, a very heavy task. I am grateful to the noble and learned Viscount, the Lord Chancellor, for his most kind reference to me. I can only say that until I become too decrepit to discharge the task with reasonable competence I am very much at his disposal if he is good enough to call upon me.
In the Privy Council, as I think the noble and learned Viscount, the Lord Chancellor, indicated, the number of cases coming forward is very great. It very often happens that the Privy Council would like to sit in two divisions, dealing with two lists at the same time. Three alone certainly cannot sit on an appeal from Canada, but they can sometimes take certain appeals from the Colonies. Any one can see, if you put those considerations together, that the supreme judicial tribunals of this country are, in fact, grossly under-staffed. I am sure that this important move to improve that position will be welcomed, and I believe that the noble and learned Viscount, the Lord Chancellor, is discharging a most useful public service in securing the introduction of this Bill and its passage into law.
I would like to add one other thing, which is implicit in the noble and learned Viscount's remarks but which it would be useful for the public to bear in mind. Hamlet's reference to "the law's delay" does not in this country always mean that the Courts or the Judges are taking too long about it, because no Court can entertain on appeal any matter which it is 850 proposed to bring before it until the parties are ready to bring it. And very considerable intervals are possible before the case is prepared and before the Petition is served and the necessary discussions are completed, which will all go to decide when the case is ready to be heard. It is not the fault of the Judiciary that it so often happens that cases are not heard more promptly.
I have been hearing a case this morning which I think had an origin as far back as 1943. This state of affairs is very largely brought about because in the preliminary stages, before the cases reach the supreme tribunal, for one reason or another the parties are not in a position to push the matter rapidly forward. That ought not to be laid at the door of the Judiciary. I feel confident that when this bill is passed we shall increase the efficiency and the speed with which appeals to our supreme tribunals can be entertained and disposed of, and in achieving that result great satisfaction will be given not only to those who are trying to help in this work by sitting on these tribunals, but to the general public, who I am sure, do feel that the delay in these decisions often in practice amounts to a denial of the full rights to which one side or the other is entitled.

THE MARQUESS OF READING
My Lords, may I just contribute one word of welcome to this Bill from noble Lords on these Benches? Any measure designed effectively to reduce delay in the administration of justice must commend itself to your Lordships' House, and it is notable that, where you are dealing with what is, after all, the Supreme Court, the decisions of that body are awaited by many lower courts, often with considerable impatience; and since Supreme Court decisions regulate the decisions in those lower courts, the greatest possible expedition is obviously of great advantage to the whole administration of justice. The powers given under tins Bill to increase the numbers of Lords of Appeal in Ordinary are not automatic. Those powers depend upon the discretion of the noble and learned Viscount, the Lord Chancellor. The responsibility of seeing that these tribunals are adequately staffed is his, and I may surely be left to his discretion (for in the absence of such discretion it may be assumed that he would not be holding 851 the office of Lord Chancellor) that the powers given by this Bill will not be unnecessarily used. If used, as they will be, with proper discretion, they will advance the cause of justice in this country.