HL Deb 18 April 1950 vol 166 cc952-63

5.14 p.m.

Order of the Day for the Second Reading read.


My Lords, I rise to move the Second Reading of this Bill. It deals with one matter only—namely, the number of judges. There are other judicial matters which might be dealt with, and perhaps will be dealt with, on some future occasion, but this Bill deals only with numbers. I will first of all deal with the High Court. Under the existing law the number of puisne judges of the High Court may not be less than twenty-five nor more than thirty-three. Under this Bill the maximum number permissible will be increased by six, but the actual number required from time to time will continue to be determined by the Lord Chancellor, with the concurrence of the Treasury, having regard to the state of business in the High Court as a whole. Under the law as it stands, every puisne judge has to be attached to such divisions of the Court as the Lord Chancellor may direct, so, however, that not less than five are to be attached to the Chancery Division, not less than seventeen to the King's Bench Division and not less than three to the Probate, Divorce and Admiralty Division. We propose no alteration in these minimum figures.

Actually, at the present time seven judges are attached to the Chancery Division, including the judge with special experience of the patent law. These are enough, but not, I feel, more than enough, to cope with the work of that Division, particularly having regard to the fact that we have recently transferred the Revenue Paper to Chancery judges. Seven judges are to-day attached to the Probate, Divorce and Admiralty Division. They are not more than are needed for the work of that Division. I am not proposing to alter that number, though I do hope that in the future, as in the past, the King's Bench judges will continue to receive valuable assistance from the judges of that Division, who frequently go on circuit and, having finished their divorce cases, are able to lend a hand with the other cases. That leaves nineteen attached to the King's Bench Division. That number has remained unchanged for a considerable time now, but I am satisfied that anybody, whoever he may be, standing in my position, would say that it is not sufficient.

It is a serious matter to contemplate an increase in the number of High Court judges, but I think it is relevant to consider the number of judges in relation to the population. Those of your Lordships who have seen the Interim Report of the Evershed Committee will find the figures set out in Appendix "C" of that Report. In the year 1871, the Report states, there were eighteen judges of the King's Bench Division, and the population was about 22,000,000. In the year 1948 there were twenty judges of the King's Bench Division, and the population was about 43,500,000. So the population, roughly speaking, has doubled, and there are only two additional judges—and of course it is not merely the doubling of the population, but the way in which they behave, which matters. I shall have something to say about that in a moment.

The Court of Criminal Appeal was instituted in 1907, and that has added very heavily 'to the work of the King's Bench Division, taking, as it does, three judges away. The civil work of the High Court in London is back to its pre-war level—indeed, it exceeds its pre-war level. May I give your Lordships the number of King's Bench cases standing for trial at the beginning of the Easter Law Sittings in 1937 and 1950? In 1937 there were 665, and in 1950 1,215–getting on for double. And, of course, although there is a large amount of civil work to be done, unhappily there is this large increase in crime. In 1938 the judges on circuit spent 692 days trying crime; in 1949 they spent 1,019 days, which is an increase of about 46 per cent. Incidentally, on circuit there was a corresponding increase between the years 1938 and 1949 of approximately 20 per cent. in civil cases. In the Court of Criminal Appeal, where as I have said three judges sit together, in 1938 the Court sat on 132 days, and in 1949 on 195 days. Therefore, the increase of crime has put a great and a growing burden on His Majesty's judges. During those years, as I have said, the number of civil actions was creeping up. It went right down in the war, but it is now past the pre-war level. May I give your Lordships a figure for the long non-jury cases awaiting trial at the beginning of the Easter Law Term? It was 168 in 1948, it was 366 in 1949, and it is no less than 707 in 1950.

The Lord Chief Justice and I have worked very closely together on this matter, and we have had to enlist the aid of a number of commissioners of assize. Now the power to appoint King's Counsel as commissioners of assize ought, I feel sure, to be reserved for emergencies. The occasional commissioner is one thing, but the regular reinforcement of the judges by commissioners is, I think, another and wholly different thing. The Evershed Committee found among their witnesses a general dislike of the appointment of commissioner of assize. The Bar Council gave evidence that commissioners should be avoided wherever possible; that the system was unsatisfactory both to the litigant and to those who sat as commissioners. Yet in 1949 I was compelled to appoint fifteen commissioners, who sat on 283 days. I was obliged to do that, although I state here and now that I entirely agree with the views expressed by the Evershed Committee as to the undesirability of appointing commissioners as a regular expedient to supplement the judicial strength.

Where there is too much work for the existing judges, the only proper remedy is to appoint more judges, and I am therefore proposing, by this Bill, that there should be power to appoint six more judges. This does not mean that if the Bill passes all six will necessarily be appointed. As I have said, the actual number depends from time to time on the Lord Chancellor and the Treasury being satisfied as to the number which the state of business requires. I feel quite satisfied that at the very least—and I emphasise those words—two are required immediately; and although we have not as many courts as we need, we can find accommodation for at least two. It may well be that if we are to be successful in avoiding the regular appointment of commissioners of assize, two more judges—making four in all—will be needed to give help wherever it is required. The Lord Chief Justice will be better able than I am to give an estimate about this, but I should not be at all surprised if he took the view that the four judges I have mentioned are necessary in order to enable him to cope with the increase in work. If the Bill passes, this matter will be considered in detail with the Treasury and, of course, I shall have u consider at the same time with the Treasury the question of accommodation for these judges.

Your Lordships will see that if those four judges are appointed, there will still be a margin of two. The Evershed Committee have recommended the introduction of a system of fixing days for trial. Witness after witness came before them and said that it was the most needed reform of all. A man who desires to brine his action wants to know on what date his action will come on so that he can make his arrangements and business engagements to fit in. There is no doubt at all, however—and I am not prejudging the question whether we should have such a system—that such a system must involve a great waste of judicial time, because one can never tell on any particular day how long the cases are going to last. There may be in the list a number of cases which all prove to be non-effective or which are settled out of court. On the other hand, there may be a list of cases all of which prove to be long and difficult. Therefore, it is necessary to have in reserve judge-power which can be turned on for those difficult days; and if we are ever going to have such a system it must involve a waste of judicial man-power.

Consequently, if that recommendation is ever accepted—and I certainly cannot regard any recommendation from such an important Committee, and made with so laudable an object, as one which can be brushed aside without consideration—we shall certainly need the extra two judges, making six. If we decided to do that, it would indeed be unfortunate that that reform, which is in the nature of an administrative reform, should be held up by reason of the fact that we have not the power to make the necessary judges. Therefore, I am asking for sufficient power by this Bill to allow the appointment of six. I have said nothing whatever about the effect on this matter of the Legal Aid and Advice Act, but it is quite obvious that it may have a considerable effect in increasing still further the amount of work which has to be undertaken.

I should like to say this about His Majesty's judges. Let it not be forgotten that His Majesty's judges have been doing all they possibly can to meet this emergency. They have voluntarily cut down their Lone Vacation by, I think, some eleven days, and they have voluntarily consented to sit, and are every day sitting, longer hours than heretofore. I think we should all recognise the debt which we owe to the judges for the steps they have been trying to take to deal with the emergency. Let no one think that we can cope with this position by asking judges to sit still longer hours. When I sit in a different capacity when this House sits as a court of law, I find that the time I sit is all I can manage if I am to apply my mind at full pressure the whole time to the case under consideration. I do not believe that it is at all desirable that judges should be asked to sit very long hours or, indeed, that a jury should be asked to serve for very long hours.

So much for the High Court Bench. I turn now to the county courts. Under the existing law the maximum number of county court judges is sixty—and that maximum was reached more than three years ago. Since then the work of the county courts has been steadily increasing and is still on the increase, notwithstanding the cessation of workmen's compensation cases. These courts have also to a large extent to take divorce cases. The place where I feel the shortage most acutely at present is in London itself. I have had to go on regularly supplementing my existing number of judges by appointing deputies. In 1949 the number of days on which deputies sat to relieve congestion was 133. That was quite apart from those cases where a deputy sat when a judge was ill or doing divorce cases; it was done simply to avoid congestion. The Austin Jones Committee, who reported on the county courts, deprecated the frequent and regular use of deputies except during illness. I agree with that view and I think the proper course is to appoint more county court judges. I certainly want two more judges immediately in the London area. I am asking for power to appoint five more, but I need hardly say that I shall not appoint more than two unless I am quite satisfied that more than two are required.

It is a long time since Magna Carta—750 years nearly. The Monarch then promised: To none will we delay justice". I think I have an unanswerable case in saying that it is quite impossible to ad- minister justice through His Majesty's judges at the present time unless we substantially increase the number of those judges. It is for that reason that we are here taking power to appoint these judges. If it is plain that appointments are needed, the Lord Chancellor of the day—whoever may fill this position—should not be handicapped from going to the Treasury and, if he can establish his case, asking that more judges should be appointed, so that they may deal justly and expeditiously with the disputes and troubles of the lieges. I beg to move.

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

5.33 p.m.


My Lords, I am grateful to the noble and learned Viscount on the Woolsack for having introduced this Bill. Judges have for many years been sitting for long hours—until seven or eight o'clock at night—and that is very undesirable. It is also undesirable that juries should sit for long hours, especially as juries are unaccustomed to long hours and to listening to evidence. A severe strain is being put upon these judges, and yet there is no way of getting through the work except by sitting these long hours.

The noble and learned Viscount has told us that he proposes to take power to appoint six judges, and that he is satisfied that two must he appointed at once. I say, very respectfully, to the noble and learned Viscount that although two judges would, of course, be better than nothing, and would no doubt help us to deal with London, the work in London has always had to suffer at the expense of circuits. I am afraid that two judges will make little difference if, as the Lord Chancellor said, we have to discontinue sending commissioners on circuit. If we had four more judges, I visualise that they would be used in this way. We should have to send one extra judge always to Lancashire, though he may not always have to go to Liverpool; we should probably, at any rate for the time being, have to have a third judge in the Manchester area. I always have to ask the Lord Chancellor to send a commissioner to the West Riding. That means that a judge would go there. That is two out of the four. That would give only t No to London—and I think they would have to hold themselves in readiness to go wherever a commissioner was required. At the same time we shall want additional help in London. Fourteen judges have to go out on circuit—though not all at once.

In part of the legal term, except the Easter sittings, there are always a large number of judges or, circuit and there are not more than six—that is to say, the Lord Chief Justice and five puisne judges, in London in the King's Bench Division. We have a great deal of work to do. We have, among other things, to staff the Old Bailey. A judge has to sit in Chambers twice a week. Three judges have to sit practically every Monday in the Court of Criminal Appeal. And as judges go on circuit, arrears are bound to pile up in London—we have fallen back to and indeed passed the pre-war mark in that respect. When I became Lord Chief Justice in 1946 we were still feeling the effects of war. There was a falling-off of litigation. At that time about six weeks elapsed between the setting down of a case and its trying. Now, however, owing to the large number of cases that are being entered, eight or nine months sometimes elapse after a case has been set down and before it is tried. It is true that often the litigants are not ready in much less time, since there is a great deal of work to be done by the solicitors to get the case ready for trial; but there is a great and undesirable lag between the date on which the case is set clown and the date on which it is heard.

I agree respectfully with what the noble and learned Viscount said with regard to the undesirability of the continual appointment of commissioners—Though many of the commissioners who have been sent out lately have been of the greatest possible assistance and, I am sure, have decided their cases as well as they could have done. There have, in fact, been singularly few appeals from them, but litigants feel that they ought to have their case tried by a judge. People in the Provinces have the advantage that their case is heard very much more quickly than are cases in London. There is therefore a great deal of advantage in the sending of commissioners. Even so, if we are to avoid sending commissioners I think four judges is the minimum number required. If only two are appointed, I am certain that London will get no relief unless commissioners are appointed to go on the assizes. That is one matter which I want to emphasise—though I recognise that it means an increase in staffs generally. Where the judges are all to go, I do not know. We have found room in the Law Courts for two judges and if there are any more it looks as if, as is the case with prisoners at present, they will have to double up and go two into one "cell"—and, indeed, some of the rooms they occupy are scarcely better than cells. I have no doubt that we shall find a way in time of dealing with this problem.

The strain is very great. The clerk of assize of a northern circuit works all the week, excluding only Sundays. I believe there have been only five days since January 12 when he has not been working on that basis. This is a problem with which we must deal. Fortunately, there are signs that crime involving long trials is diminishing to some extent. In recent months we have been faced with lone cases of conspiracy to steal and to defraud which largely arise out of black market transactions for the purpose of making illicit profits out of controlled articles. So long as clothing was rationed, wagon-loads of textiles were stolen. Now that it is no longer rationed, that state of affairs no longer exists. As the controls are lifted, so I think this heavy crime will tend to disappear. At the same time, however, there are black spots in the country—I need not mention them now—where crime is so heavy that generally both judges have to be taking the gaol delivery instead of one judge taking civil work and one taking crime. When that happens the only remedy possible is to ask for commissioners. I am sure that we shall all do our best in the future to avoid asking the Lord Chancellor to send commissioners, and I think we shall be able to do that if we get four judges. Even so, that will leave London at some disadvantage with the provinces. I hope your Lordships will give your support to this Bill.

5.41 p.m.


My Lords, my noble and learned friend Lord Simon was going to deal with this matter. He has had to leave the House so it falls to me to say a few words. For my part, I think that the noble and learned Viscount on the Woolsack, ably supported as he has been by the Lord Chief Justice, has fully made out his case. In fact, I suspect that he had fully to make out the case with the Treasury before to-day. I should like to congratulate him on being able to get the Treasury's concurrence to introduce a Bill of this sort on Budget Day. It is a considerable achievement for the noble and learned Viscount. I agree with all he has said about commissioners of assize. I have no doubt that the great majority of them, because they are carefully selected, do their work admirably, but they do not look the same as judges of the High Court. They do not impress people in the same way, and they do not sit in the same kind of robes. Therefore, the person having his case heard by a commissioner of assize somehow seems to think that he has come off rather second best, because it is a substitute and not the judge himself who is trying the case.

Certainly I hope that the two judges necessary to replace this large number of commissioners of assize will be appointed. I hope that it will come to pass that we shall be able to fix days for major trials. I believe that a great deal more money is wasted by witnesses and important executives hanging about for their cases to be heard than will be involved in paying the salaries of two extra High Court judges for that purpose. The noble and learned Viscount talked about the possible increase because of the new Legal Aid and Advice Act. I think that will occur. That brings us more to the second part of this Bill, for the increase will occur more in the county courts than in the High Court. Therefore, the remarks that I made about the commissioners of assize apply equally to the deputies of the county court judges. Usually they are carefully selected and try their cases well, but it is not the judge himself trying the case. Therefore, I think it is proper to have this power to appoint the additional five county court judges. Two, I understand, will operate in London immediately. I should like to ask the noble and learned Viscount whether it is proposed to appoint the other three and, if so, whether that will mean an alteration in some of the county court circuits.

I think it is right that judges end juries should not be asked to sit too long hours. Attention is bound to flag. Equally, it is important that we should not have judges who try to get through their lists quickly, hustling through cases which may mean so much to the litigants concerned, although perhaps not very much in the ordinary run of work in the courts. For these reasons, because it will prevent that kind of thing happening, I think we should all support this measure and give the power to have these additional judges, both in the High Court and in the county courts.

5.45 p.m.


My Lords, it would require extreme immodesty and extreme hardihood lo oppose a Bill advocated by the noble and learned Viscount on the Woolsack and the Lord Chief Justice; and I need not say that I do not claim that hardihood or immodesty. I desire to make one point only, and that is as to the administration of this measure. My point is that the powers given by this Bill should be exercised with extreme caution. I was a King's Bench judge for seventeen years and I was filled with astonishment and gratitude at the esteem and prestige enjoyed by His Majesty's judges, not least on circuit. It cannot but be that a small body—and it really is a small body—cannot indefinitely be diluted in quantity without some probable sacrifice of quality. The prestige of which I spoke was, in fact, due to the real quality, if I may say so, of my brother judges. I have no doubt that the present judges are very good, but there comes a point at which dilution is dangerous. That is my point.

I would make one observation on the figures which the Lord Chancellor has cited from the Report of the Evershed Committee. I will not say there was a little Chancery confusion about those figures, but they are not very enlightening, for this reason. In 1871, the time they start, the judge's function was entirely different from what it is now. The Summary Jurisdiction Acts had indeed been passed and so had the County Court Acts,,but the High Court judges were then mainly engaged in trying matters which are now dealt with by courts of summary jurisdiction and by county courts. One has only to read the memoirs of the time to see how long those trials lasted, and to observe with what trifling matter they were concerned, compared with the heavy substance involved nowadays. Therefore, I do not think one gains much useful information from these figures, or at least not as useful as it should be. The reason I make this point is that there have been Bills where the Lord Chancellor, however much he may have tried to conceal it, was obviously in sympathy with criticisms of the treasures that were then put before the House, when people in other places who thought themselves wiser—mistakenly, in my opinion—considered that another course should be taken. I would beg of him to resist that ill-informed pressure and not to be over-kind and over-complacent—even with the Lord Chief Justice!

5.49 p.m.


My Lords, may I briefly reply? I fully recognise the danger which the noble and learned Lord, Lord Roche, has mentioned. Of course, it is the fact that quantity and quality are enemies. I must be very careful to see that we maintain the high quality of judges which we have had ever since I began to practise at the Bar, which is now a long time ago. I like to think that that quality has been very well maintained in recent years, and I believe that to be the fact. I do not think that there is any danger that I shall have to reduce my quality, even though I have to appoint the full number of six judges. In my discussions with the Treasury I shall certainly bear in mind what the Lord Chief Justice has said—namely, that we ought to have four more judges at once.

I was rather proud that I had obtained the agreement of the Treasury to introduce this Bill; this is an auspicious day from that point of view. But of course I was able to point out to the Treasury that if it turns out in the future that we do not want these extra judges—that people start behaving better, the crime wave dies down, and so on—then, as and when vacancies occur, I shall not have to fill them. We shall try to steer between Scylla and Charybdis—the Scylla of not having enough judges to deal with the amount of work with which they ought to deal, and the Charybdis of having a larger number of judges, perhaps of not the high quality we have to-day, hanging about doing nothing. I think that is a matter which your Lordships will have to leave to the Lord Chancellor from time to time. I am perfectly certain that Lord Chancellors will be able to cope with this matter in consultation with the Treasury.

My Lords, I am grateful to your Lordships for giving this Bill your approval. I feel (and I do not mind saying it) that in some senses my office is the most important of all in this country, because I am responsible in broad outline for the appointment of the judges and the administration of justice, and it is upon the fair, impartial and relatively speedy administration of justice that our whole civilisation depends. Therefore I commend this Bill to your Lordships, and I thank you for giving it your support.

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