HL Deb 20 January 1948 vol 153 cc436-44

Order of the Day for the Second Reading read.


My Lords, I rise to move that this Bill be now read a second time. I hope and believe that the measure will be found completely uncontroversial. The object of the Bill—or at any rate the object which I have in mind—is to enable the Court of Appeal at the present time to sit in four Divisions. Your Lordships may be aware that under the Judicature Act the maximum number of Divisions in which the Court of Appeal can sit is three. I must say that the position of this Court is causing me some alarm, but no despondency. The position is as follows. Last year the Court had to deal with 655 cases. That is easily a record. The indications are that in 1948 that record may be beaten. At the opening of the sittings this year there were 298 cases listed for hearing, whereas at the corresponding period of last year, the record year, there were only 227. Since the beginning of this year the Court has disposed of 20 of these Appeals and, therefore, the 298 have been reduced to 278. Whilst those 20 cases were being disposed of, 54 new cases were entered.

I realize that it is idle for me, or for your Lordships, or for anyone, to boast about our success in dealing with the law's delays (and we have dealt with them satisfactorily in the first Courts) if we have in their place a new bottleneck arising in the Court of Appeal. Of these cases, there are no fewer than 76 divorce cases—enough to keep one Division, as a Court, occupied for the whole term. In my days at the Bar one would have five or six divorce cases in the course of a year. The increase is not to be wondered at, when we consider certain melancholy facts. Some time ago I told your Lordships that I anticipated there would be 50,000 divorce cases last year. The actual figures are as follows. Last year our Courts announced decrees nisi in 54,410 cases, and there were 49,000 odd petitions. Therefore the result is now satisfactory, at any rate to this extent: that we are now not only dealing with current work but are clearing up arrears. No one is more conscious than I am of the absolute necessity of maintaining the quality and the reputation of the Court of Appeal, if only because in the vast majority of cases which it hears it is the final Court of Appeal; only a very small percentage of cases ever come to your Lordships' House. One so often finds that quantity is the enemy of quality. These cases raise a large number of difficult and most important points. Many are cases in which it is desirable, if time permits, to reserve judgment. But the Judges are hard at work hearing their cases five days in every week, and the only time they have for writing their reserved judgments is on Saturdays and Sundays. I suspect that that very fact, oppressed as the Judges must be by the volume of their work, gives rise to a tendency not to reserve judgment in cases where it would be better that judgment should be reserved.

I hope and believe that this situation is only temporary. If I thought it was a permanent situation I should have to ask the Chancellor of the Exchequer to assist me by allowing me to introduce a Bill to create more Judges of the Court of Appeal. But my hope is based on a belief that the volume of this litigation is largely the aftermath of war. That, I think, is particularly true of divorce, and also of those many cases in which witnesses were not available, by reason of war service, or because the facts, by reason of war conditions, could not be revealed. Therefore the present Bill is of the description "make and mend" which we all have to apply to-day. What I want to do, if I can, without in any way reducing the high quality of the Court, is occasionally to sit with a fourth Division. The Master of the Rolls, who is not here to-day because he is busy in the Court—and I may say that this Bill has his cordial approval—tells me that there was a fortnight at the end of last term when he could have got the Lord Chief Justice to sit; he was willing and able to do so. And there was a fortnight at the beginning of this term when the engagements of the President made it possible for him to sit. Further, I am entitled to say that the Master of the Rolls can enlist the services of the Lords of Appeal who have previously sat in the Court of Appeal or who are qualified so to do.

In my experience the Court has never consisted of two Judges, and I do not think that that would be desirable. I think we should always have two members of the Court of Appeal qualified to sit as such, and in addition a third member, who may of course be a member of the High Court. So that if the Lord Chief Justice or the President sat, or one of the Lords of Appeal in Ordinary, so long as I had one other member of the Court of Appeal I should have no compunction in asking one of the High Court Judges to sit as the third. I do not contemplate a permanent fourth Division of the Court of Appeal; I do not see my way to that at present. What I do want is to lower the barrier which at present prevents the Master of the Rolls taking the opportunity, from time to time, of getting a fourth Division to help him with a very heavy list. But that fourth Division—and this is all I contemplate—would sit only from time to time. The Bill has been so drafted as merely to remove the limit of three Divisions. I have not the slightest objection to limiting the number to lour; and many of your Lordships might think that desirable.

I cannot guarantee that this scheme of mine will work. It may, or it may not. If it does not I may have to come back and propose to your Lordships more drastic measures. I am quite sure that every one of your Lordships will agree that we must take all the steps we can to enable the Court of Appeal to cope with the volume of work facing it, without putting an undue strain on the Judges, who are to-day manfully coping with a very difficult task. That is the object of the Bill. I want to help in dealing with this present emergency, with the vast number of cases there are at present. I want to do it, if I can, without reducing in any way the quality of the Could or the great reputation which it has so deservedly won. I beg to move.

Moved, That the Bill be now read 2a.—(The Lord Chancellor.)

2.49 p.m.

Viscount SIMON

My Lords, may I say that I believe we shall all feel that the Lord Chancellor has completely proved the necessity for this measurer My own judicial experience is limited to sitting for judicial purposes in this House, though I saw much of the work of the Court of Appeal in earlier years. Leaving aside the noble and learned Viscount himself, I am perfectly confident that there is no person in a judicial office in this country who bears so heavy a burden as does the Master of the Rolls, Lord Greene, who is of course the President of the Court of Appeal and responsible for the arranging of the day's work. The conditions under which he has to manage business are, I am convinced, well-nigh intolerable. On the one hand, he has the highest sense of duty in getting the work done and avoiding the necessity to keep litigants waiting, while on the other hand the amount of work that falls to him and his colleagues is more than can be dealt with under present arrangements.

I was glad to hear the noble and learned Viscount say that the Bill might be phrased in a slightly different way, because my colleagues who sit with me on judicial business in the House of Lords themselves feel that there is a better way in which the matter can be expressed. Some feel that otherwise there might be an undue proliferation of judicial Tribunals. I am sure that everybody who understands the subject and who has listened to the Lord Chancellor will be most heartily in favour of this Bill. We believe it will do something to relieve the strain. I think that one of the Law Lords who are now sitting in their proper place on the Cross Benches might like to point out that a change in the form of the proposed Bill would be desirable.


My Lords, as the third voice to pronounce judgment upon this matter, I may perhaps best take refuge in the formula employed in the Court of Appeal, and say merely that "I agree and have nothing to add."


My Lords, I have so far observed what I believe to be the rule in all seriously controversial matters, that those Lords of Appeal who sit on the Cross Benches should be seen and not heard, but perhaps in a matter of this kind, and especially after the pointed invitation of the noble and learned Viscount, Lord Simon, I may be allowed, on my own behalf and I think that of my colleagues, to say a few words, first of all in support of this Bill and secondly in support of the proposal that an amendment should be made in it. This is a matter to which I know my colleagues attach some importance. I am not sure that the ordinary man—I will not speak of members of your Lordships' House—has any very clear idea about the legal hierarchy and the composition of the Court of Appeal. I have observed lately that there is a very popular form of amusement which consists of answering short general knowledge questions—I think "quiz" is the word which is applied to them. There are three questions which I am not sure that everybody (perhaps even in this House, if I may say so with respect) would answer correctly. First, who compose the Court of Appeal, and who are entitled to sit in it? Secondly, who is the President of the Court of Appeal? Thirdly, distinguish carefully between Lords Justices and Lords of Appeal.

Since I have had the honour of sitting in your Lordships' House, I have found, when I have told my friends they must no longer address me as "Lord Justice" but that the word "Justice" had disappeared from my style, that that statement has been received with every mark of respectful commiseration. It has been only too clear that they felt that at last I must have been found out, and that I had taken a step down! Your Lordships know, of course, that the Court of Appeal, as it works from day to day, sits in two Divisions. It deals with appeals from the County Courts, from both Divisions of the High Court and from other courts which it is unnecessary to name. In practice, the Master of the Rolls presides over one of the Divisions, and in practice—I think the Lord Chancellor will not mind my saying this—the Master of the Rolls is the effective President of the Court; in fact, my noble and learned friend Lord Simon referred to him just now as the President of the Court. That is not strictly accurate, if one is to be pedantic, because by Statute the Lord Chancellor is the President of the Court. The other Division is presided over by the senior Lord Justice. There is power in the President (that is, in the Lord Chancellor) to appoint a Vice-President, but he has never found it necessary so to do.

There are those two Courts, and as matters stand it would be possible, and sometimes it is necessary, to have three. There are now, in addition to the Master of the Rolls, eight Lord Justices of Appeal, making a total of nine. If nobody were ever ill, and if nobody were ever torn away to preside over a Royal Commission or a committee, we might just manage to get along with that body of men with three Divisions. But in practice, of course, it cannot be done. Fortunately, there are others upon whom it is possible to draw. I hope I am not wearying the House if I say what would be the complete muster if everybody could be included. There is the Lord Chancellor, who is the President. Ex-Lord Chancellors are entitled to sit but they have not sat, I think, for a very long time. To take one instance, the noble and learned Viscount, Lord Simon, I am quite sure, would be very ready to go and sit anywhere where he could best serve the public interest. But his time is fully taken up in presiding, to the great profit of all concerned, over your Lordships' House when judicial business is taken—to say nothing of his political commitments. However, strictly speaking, the ex-Lord Chancellors are available; they are not obliged to accept the invitation to sit, but they may be invited to sit.

Exactly the same applies to the Lords of Appeal in this House—or rather to some of them—namely, those, now numbering six, who have occupied such positions, either at the Bar or on the Bench, that, when they were appointed Law Lords they might have been appointed, if they had not already been there, Lords Justices of Appeal and sat in the Court of Appeal. In practice, that means that the Lord Chancellor might invite six of our body to sit in the Court of Appeal, excluding, of course, those two noble Lords who represent Scotland, or the noble Lord, Lord MacDermott, who comes from Northern Ireland. In addition, all the High Court Judges may be called upon; all former members of the Court of Appeal may be called upon; all former High Court Judges may be called upon. So that, apparently, there is quite a large muster available. As I have said, however, in practice the Court sits in these two Divisions, consisting of Lords Justices, with the occasional help of those ex-officio Judges, who rank very high, the Lord Chief Justice and the President of the Probate, Divorce and Admiralty Division. In practice—my noble and learned friend who sits beside me has had similar experience and can confirm this—the Court is made up of Lords Justices and the Master of the Rolls, and there is no more hardworked judicial office in the country—again I exclude, as did the noble and learned Viscount, Lord Simon, the noble and learned Viscount the Lord Chancellor. And, of those hardworked men, the Master of the Rolls is the most hard-worked.

It has been said already that decisions of the Court of Appeal are seldom the subject of any further appeal to your Lordships' House. The cases that come here are quite limited. The judgment of each Division of the Court of Appeal becomes binding law from the time it is pronounced. The judgment of one Division binds other Divisions, and unless Parliament alters the law, or by some piece of fortune the point comes before the House of Lords, it cannot be altered. When the noble and learned Visccunt, Lord Maugham, was Lord Chancellor and the number of Lords Justices was increased, it was felt that it would be desirable that there should be more reserved judgments. It is obvious to everybody that when such important decisions are being given, often of incalculable importance to many people, they should be carefully thought out. As matters stand, it is sometimes quite impossible, although every effort is made to do so, to give to these cases the degree of attention that one would desire. It is intolerable that Judges in a Court of that kind, if they reserve their judgments, should have to devote weekends to writing elaborate judgments. But that is the position.

I do not think it is generally realized that the members of that Court have to sit down and start writing judgments after a long and frequently tiring day in court; otherwise the week-ends are all that is left to them. For those reasons, it would be churlish, as well as very much against public policy, to refuse to do anything that the Master of the Rolls and the Lord Chancellor say will help the administration of justice in the Court of Appeal. I want to say no more about that, except that I heartily support the spirit and the intention of this Bill.

I venture to say, however, that I do not think it would be a good Bill if it remains as it is now drafted. Clause 1, which says: For the word 'three' there shall be substituted the words 'two or more' looks very innocent. and is quite innocently intended. Of that I am certain. The only motive that prompted the draftsman, I imagine, was that with these words it would be unnecessary to come back in the future, if it were thought that a fifth Division was needed. But as matters stand, at any rate, a fourth Division, in my submission, is all that this House ought to be prepared to legislate for. I need not press at an open door—that is a stupid thing to do. The noble and learned Viscount, the Lord Chancellor, has already said that he will be quite content with a fourth Division and, indeed, that it is not intended that the fourth Division shall sit regularly. Your Lordships will see, from what I have said, that, if you were prepared to interpret this as almost an invitation to have as many Divisions as could be formed you would indeed have to substitute quantity for quality.

By that I do not mean to say that Judges of inferior quality would be asked to sit. I have always acted on what I remember hearing said by Lord Justice Vaughan Williams, that very distinguished figure who used to preside over the Court of Appeal and whom many of us remember well. I heard counsel say that he was going to quote a decision of "a very learned Judge," and Lord Justice Vaughan Williams said: "I protest against any such description of a Judge. All Judges are learned." For myself, I act upon that maxim. But it is not only the individual Judges who have to be considered, it is the Court as a whole. Theoretically, for instance, a Court of Appeal could consist of three of the Law Lords, but it would never appeal to the public if the decision of such a Court were brought to this House and reversed by three other Law Lords sitting in a position which made them comparatively infallible. It might be sound law, but it would not do. It would not do, as the Lord Chancellor has said, too often to have a Division with more than one Judge of the High Court in it, although I myself have sat, as a Judge of the High Court, when the Court was presided over by a Lord Justice and the other Judge was another member of the High Court. To sum up, although there are all these potential sources from which to draw, it is really impossible for practical purposes to have more than three Divisions, with now and then a fourth division when you have sitting either the Lord Chief Justice or the President of the Probate, Divorce and Admiralty Division.

I have only one other thing to say, and I should like to make one constructive proposal. It is most flattering to the Judiciary—and I am sure all Judges appreciate it, that His Majesty's Government so often find it convenient and in the public interest to go to His Majesty's Judges and to the Court of Appeal to find someone to preside over an important Committee or Royal Commission. It helps to dislocate the work of the Court of Appeal when that is done, because if the Judge has to go off to a meeting of his Committee or Commission, the whole business of a Division of the Court may be disturbed, and the whole of the arrangements made by the Master of the Rolls may be upset. I would therefore appeal to His Majesty's Government, great as I know is the temptation, to say that while the Court of Appeal is in this great difficulty they will not take away any more of its members to do other public work.

3.4 p.m.


My Lords, may I say, in reply, that I am very grateful to all your Lordships for the reception you have given to this Bill? I enjoyed very much the speech of the noble Lord who has just sat down. I enjoyed it particularly because he set a quiz which is almost the only quiz in which I am quite confident I would get full marks. May I be a little cruel to this extent: that I am glad he caught out the noble Viscount, Lord Simon, on one of the very rare occasions on which he makes a legal error? As to his other remarks, I will gladly bear in mind the injunction which I have just received. I always try to impress upon my colleagues that they really must not ask for the services of Judges in the way they do. Sometimes I am afraid I am guilty myself, but I will try to reform, and I will try to reform others too. For the rest, I will see that when this Bill comes to the Committee stage a suitable Amendment is introduced omitting the words: "two or more" and substituting "four."

On Question, Bill read 2a, and committed to a Committee of the Whole House.

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