ADMINISTRATION OF JUSTICE BILL

HL Deb 29 January 1968 vol 288 cc602-39

2.47 p.m.

THE LORD CHANCELLOR (LORD GARDINER)

My Lords, I beg to move that this Bill be now read a second time. This one-clause Bill was welcomed by Members of all Parties in another place, and I hope that your Lordships will give it a similar welcome. It is a Bill which does two things. First, it increases the statutory maxima of the numbers of judges; and secondly, it provides that if in future it becomes necessary to alter those maxima it may be done by Order in Council, not to come into force until the Order has been laid before Parliament and approved by both Houses of Parliament. I hope that your Lordships will approve that provision. Having regard to the shortage of legislative time, it should, your Lordships may think, be unnecessary to have a simple one-clause Bill subject to First Reading, Second Reading, Committee stage, Report stage and Third Reading.

The numbers of the maxima which it is proposed to increase are, in the case of the Lords of Appeal in Ordinary, an increase from 9 to 11; in the case of the Lords Justices, an increase of 11 to 13; in the case of High Court Judges an increase of 63 to 70; and in the case of county court judges an increase of 90 to 97.

It cannot be said that in comparison with other countries we have an excessive number of whole-time professional judges. I think I have mentioned before in your Lordships' House that at one time I wrote to all the Law Ministers of Western Europe and our old Dominions to ask whether they would be good enough to let me know how many whole-time professional judges they had per million of the population. The answers were these, among others: Sweden, 121; Switzerland, 110; Belgium, 85; France, 82; Canada, 76; Norway, 58; the Netherlands, 36; Australia, 29; New Zealand, 24; Scotland, 15; England and Wales, 8. We are, therefore, very much at the bottom of the league table. If one takes all our judges of all kinds, including subsidiary judges like masters, registrars, registrars of the Probate, Divorce and Admiralty Division, district registrars, registrars of all the county courts and so forth, the total number of whole-time professional judges in England and Wales is 382.

At the same time, I asked the Law Ministers whether they would be good enough to tell me what was the percentage of their last budget which was attributable to justice, other than prisons and the police, for which I explained I was not responsible. Here again we were at the bottom of the list. On average, most countries spent one-half of 1 per cent. on justice; our figure, which is the lowest, is 0.16 per cent. So we spend a smaller proportion of our money on justice than any other Western democracy, largely because we make the litigants pay for most of it.

There are different reasons why it is desirable that the statutory maxima should be increased. Perhaps I may take first the Lords of Appeal in Ordinary. Their number is nine, and it has been nine for over twenty years. When sitting as the Appellate Committee they have to be five; and the Privy Council, except on petitions for leave to appeal and when they are hearing appeals from dependent territories, also have to be five. In addition to the nine, there are others qualified to sit if they are Peers—the Lord Chief Justice and the Master of the Rolls. But, of course, they have their own jobs to do. The noble and learned Viscount, Lord Dilhorne, as an ex-Lord Chancellor, qualifies to sit; and he has been extremely kind in sitting a great deal in the course of the last year. The Lord Chief Justice of Northern Ireland is qualified to sit; and he comes over occasionally. But, as I shall explain, the arrears of work in Northern Ireland are rather worse than here, so he cannot often come.

Starting, then, with nine, the Lord Chancellor is often appealed to by the members of his own Government to allow a judge to do some other form of public work, and obviously one must put the national interest first. When we have a very important Royal Commission, such as the Royal Commission on trade union law, and we have both the Confederation of British Industry and the Trade Union Congress insisting that they ought to have a particular judge in whom they have special confidence, it is obviously very difficult to refuse. This has meant that for about eighteen months Lord Donovan has hardly been able to sit as a Lord of Appeal in Ordinary, at all, and this reduces my nine to eight. If somebody is ill the number is reduced to seven. I do not know how I should have managed in the last eighteen months if Judges of the High Court in Australia, the President of the Court of Appeal in New Zealand and the Chief Justice of Trinidad had not been able to come over for one, two or three months at a time to help me out.

I do not think that the present position is a satisfactory one. What I am asking for, however, is not that any immediate appointments should be made, but that the statutory maxima should be increased. I shall, of course, consult with the noble and learned Lord, Lord Reid, the senior of the Lords of Appeal in Ordinary, as to whether he thinks one additional Lord of Appeal in Ordinary should shortly be appointed.

As to the Lords Justices, your Lordships will remember that in 1966 we passed legislation, the Criminal Appeal Act of that year, abolishing the Court of Criminal Appeal and providing that criminal appeals should be heard by a Criminal Division of the Court of Appeal. It was not necessary at that time to increase the statutory maxima because there were two vacancies, but two High Court Judges with special experience in criminal cases were appointed to the Criminal Division of the Court of Appeal to give that Division a good start. Since then, the number of applications for leave to appeal has greatly increased. In 1965 there were 2,852; in 1966, 4,403, and last year, subject to checking, 5,900.

At the same time, civil appeals have suffered because it is usual to give criminal work precedence over civil work. The number of civil appeals outstanding at the end of the term has increased by about 50 per cent., and whereas it used to be possible, and should be possible, for a civil appeal to be heard within three months of its being set down, the three months has now become four. So few appeals come to your Lordships' House that our law is very largely governed by the Court of Appeal, and it is very undesirable that the Court should be under very great pressure. They have a great many judgments reserved and to write. The Judges in the Court of Session in Edinburgh do not sit on Mondays, but our judges have to do all this work out of court.

Again, I had a further difficulty because one of the two judges who have been made Lords Justices expressly to give this Criminal Division a good start was Lord Justice Edmund Davies. But then we had the disaster at Aberfan, and as soon as the Prime Minister came on the telephone I guessed what it was going to be. He wanted Lord Justice Edmund Davies to preside at a Committee of Inquiry into that disaster. Obviously, I could not refuse. Lord Justice Edmund Davies was born just over the hill from Aberfan and he went to the local school; and, of course, it is quite obvious that the people of Aberfan could not, perhaps, have had the same confidence in any other member of the Judiciary. But that meant that almost as soon as he started this work in the Court of Appeal he went off to Aberfan, and that work took him about six months.

So far as the High Court Judges are concerned, there has been a great increase of work lately, and there are divers causes for it. The first cause, I think, is simple: the population has increased. Obviously, if the population increases, prima facie there are more people to litigate and crime is likely to increase in proportion. As your Lordships know, crime has in fact increased since the war out of all proportion. But if there was not an increase of that kind, one would in any case expect that an increase in the population would result in an iacrea5e in crime. As a matter of interest, the number of Queen's Bench Judges per million of the population in 1871 was 1.26, and the number of Queen's Bench Judges per million of the population in 1966 was 1.26—exactly the same. It is true that the numbers of those judges have more than doubled, but the population of England and Wales in 1871 was 22 million, and is now 48 million. The proportion is exactly the same.

As to the Chancery Division, I do not know whether this is the result of recent legislation or not, but work there has very much increased, and I am sorry to say that from the time when a case is ready to set down for trial to the time it takes to get the case tried is now a year—and, of course, that is obviously much too long.

Another cause is legal aid. I do not think we have anything to be sorry about in this connection. It means that people who could not previously afford to be defended on a criminal charge, now can. It means that people with legal rights can afford to enforce them. Of course, your Lordships know that legal aid is not free. One is assessed by the Supplementary Benefits Commission and has to pay what one can; and people on an income of, say, £20 a week find that they have to pay most of the cost themselves. But the State pays what the subject cannot afford to pay. As if you have legal rights which you cannot afford to enforce you may just as well throw your legal rights into the wastepaper basket, we think it right to have what we consider to be the best legal aid system in the world, but it has of course meant an increase in litigation.

Another feature recently has been the great increase in cases which take a very long time to try, particularly, though not exclusively, criminal cases. This, I think, is simply due to the increasing sophistication of modern life. Fraud cases may involve very large sums of money and very complex transactions which those accused have done their best to cover up in the books, and that kind of case takes a long time to try. A case like the train robbery case obviously takes a long time to try; as does a case like the Richardson gang case. Wherever about fifteen people are accused of conspiracy, all of whom may be represented by different counsel, and each of whom is entitled to cross-examine every witness called for the prosecution, of course the case takes a long time.

As a matter of interest, in 1952, which seems to have been a typical sort of year for that period, the number of cases at the Central Criminal Court which lasted beyond four days was 10; in 1966 the number of cases which lasted more than four days was 104. Another obvious sign that the Queen's Bench Judges cannot get through all their work lies in the number of times that I have to appoint commissioners. As your Lordships know, they are senior members of the Bar who are made commissioners to try a particular case or a number of cases, for which they have all the powers of a High Court Judge. Nobody really likes this. The people do not like it because they think, quite rightly, that they are entitled to have their cases tried by High Court Judges and not by barristers. The barristers do not like it because they lose money on the low rates of pay which the Treasury pay their commissioners, and also it is hard on many of their clients whose cases they have to return at the last moment.

A few years ago the number of times the Lord Chief Justice would tell me that there was, say, a case at Bedford (or some other town) which he had been told would last a month and if the assize judge tried it he would not be able to try any of the other civil cases, used to be three or four times a year. In the last few years it has varied between 10 and 14 times a year.

As to the county courts, in the cases to which I have referred we already have the maximum number in the posts. The maximum number is 90 and there are 90 at present in posts. Here again there are various causes for the increase in the amount of work in the county courts, although it has not increased to the same extent as the High Court. There is the increase in the population; the fact that the county court tends to be busiest at times of stringency: and the fact that legal aid has not so long ago been introduced in the county court. There is also the fact that some of the county court judges now sit at quarter sessions.

The noble and learned Viscount, Lord Dilhorne, took the view that, speaking generally, it was undesirable, if it could be avoided, that there should be judges who do nothing but crime, week after week, month after month, year after year for the rest of their lives. I entirely share his view. He took the view that while, of course, in the Central Criminal Court and some other places this might be unavoidable, where there were deputy chairmen of quarter sessions who in large towns have to sit all the time, it would be desirable to have county court judges who could lend a hand with that work. In Manchester and Liverpool now all the deputy chairmen of quarter sessions are county court judges. They do six months on civil work and six months on quarter sessions. There are large numbers of county court judges now in London who act as deputy chairmen of quarter sessions in London for a couple of months a year, and there being recently a vacancy for a new deputy chairman of quarter sessions and for a county court judge I appointed two county court judges, each of whom would be available to sit for the quarter sessions. This, of course, affects the maximum number, so, in a sense, I am depriving myself of a county court judge in that way. Another cause of the increase is that for a long time the county court judges have been doing nearly all the undefended divorce cases, and the number has about doubled in the last ten years.

With regard to Northern Ireland, the Bench consists of the Chief Justice, two Appeal Judges and two puisne judges—five in all, and they have remained the same since 1920; but the Chief Justice tells me that there is an alarming rate of arrears. This has been caused partly by the fact that crime has increased and partly by the fact that only a year or two ago they started legal aid for the first time.

As for the Court of Session, I am under the impression that is not under such pressure. As I have said, they do not sit on Mondays, although I think they sit on Saturday mornings to deal with divorce cases. It was proposed to increase their maxima from 18 to 20, but the Government in another place accepted the only Amendment there was, to substitute 19 for 20. I may say that the only critical speeches in another place were from the Scottish Members of Parliament. I think they are under not quite so much pressure there, although it is only right to say that just as in England Mr. Justice Scarman has been seconded for five years to the Law Commission, so in Scotland Lord Kilbrandon has been seconded to the Scottish Law Commission and Lord Wheatley devotes a lot of his time as Chairman of the Commission on Local Government for Scotland.

There is more than one guarantee against the appointment of too many judges. The first is that no Lord Chancellor ever wants to appoint any unnecessary judges, and the second is that, partly by Statute and partly by convention, I cannot increase the number of judges anyway without the consent of the Treasury. Indeed, if a judge dies or retires I have to convince the Treasury that the state of business is such as to require his place to be filled. Moreover, if the conclusions of the Royal Commission on Assizes and Quarter Sessions led to the view that there should be fewer judges of any particular kind, it would not be difficult to reduce them. For all these judges except the county court judges there is a retiring age of 75, and of 72 for the county court judges, and the rate of deaths and retirements is such that by merely not filling vacancies it would be easy to reduce these numbers.

Perhaps in conclusion I should say a word about my actual intentions, although I think I should be wise to wait and see when the Bill becomes law. As for the Lords of Appeal in Ordinary, there is a case now for one additional Lord of Appeal in Ordinary, but before making up my mind I would discuss that with the noble and learned Lord, Lord Reid. There is a case for one more Lord Justice in order to try to catch up with the mounting arrears in the Court of Appeal. In the High Court, although there is this grave delay in the Chancery Division, I used up my last power of appointing a judge by recommending the appointment of an additional judge in the Chancery Division, and I hope he may enable these arrears to be caught up. It is doubtful whether the Probate, Divorce and Admiralty Division will require an immediate additional appointment, but the Queen's Bench Division certainly requires one additional appointment.

The number of county court judges will depend entirely on how they can get through their work and how often I have to appoint a deputy chairman of quarter sessions. My right honourable friend the Secretary of State for Scotland does net propose, when the Bill becomes law, to make any immediate additional appointment. In Northern Ireland the state of arrears is such that it is quite clear that either one or two additional puisne judges ought to be appointed almost as soon as the Bill becomes law. I hope with that explanation your Lordships will give the Bill a similar welcome to that which all Parties gave it in another place. I beg to move.

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

3.10 p.m.

VISCOUNT COLVILLE OF CULROSS

My Lords, I do not know what the noble Lord, Lord Goodman, is going to say from the Cross-Benches, but at any rate so far as those who sit in the Opposition in this House are concerned I can tell the noble and learned Lord straight away that we shall support the Bill. After the explanation the House has already heard, I do not think I need say very much about the details of the Bill, although I expect that the noble and learned Lord the Lord Chancellor will agree that perhaps the immediate justification for the increases, though necessary to be explained, is probably subordinate to the power in future to increase the number by Order in Council. Indeed, as the noble and learned Lord has said, some of the powers in the first part of the Bill are to be exercised straight away, whereas others are to be in reserve for the moment.

Although a Bill of this nature could in fact be a springboard for a great deal of discussion as to why it is necessary for further judges to be created, it would probably be better on this occasion to restrict ourselves to the fact that in most cases it is because of laws already passed by Parliament and now being put into operation in the courts. Perhaps in that respect we ought to bear in mind the consequential matters which will follow upon the more complicated legislation that we pass. It would always be wise, I suggest to your Lordships, to bear in mind that, when very difficult and complicated legislation is being considered by this House, somebody will have to interpret it, and it is hardly surprising if the cases take a very long time when it is extremely difficult, if not impossible, for Members of this House, and members of the Government sometimes, to persuade each other what the various clauses mean. I would hope, therefore, when we are dealing with the sophistications, as the noble and learned Lord pointed out, of modern life, we try to remember those who have to interpret them, that is, the lay person, the litigant or the accused who is going to come in contact with these affairs.

I think the noble and learned Lord has justified all the powers that he wants. I would make only the very briefest comments on one or two of these individual categories. I hope that there will be no cessation of the practice, if not the necessity, of calling in the very powerful talents of Commonwealth judges to assist in Privy Council cases. It seems to me, or at any rate I have been told, that the justice in the Privy Council has been greatly enhanced and decorated by the part they have played of late. So long as the Privy Council deal with matters arising in courts outside England and Wales, I hope that the noble and learned Lord will not forget the contribution these judges can make towards the fulfilment of the whole purpose of the Privy Council.

With regard to the Court of Appeal, I think it will be for another occasion to decide why there are, for instance, so many more applications for leave to appeal. I can think of one or two matters that were discussed on a recent Bill which may or may not have had something to do with this, but the fact is that there are these applications and the Lords Justices must be there to deal with them. So far as the High Court itself is concerned, I think probably that lawyer, litigant and accused alike will remember in some cases delays which are sufficient in themselves to justify more judges to expedite matters.

I am glad that the noble and learned Lord has explained the situation about Scotland. If only one extra appointment is immediately necessary I am sure that the Bill is right in only providing for it, with again the power to add to the numbers of High Court Judges in Scotland if necessary by Order in Council. As for Northern Ireland, I had already heard that a new appointment was of maximum urgency.

So I can see nothing whatever to quarrel with in this Bill: and I hope that your Lordships will in fact pass it through this House with the same speed that it passed another place. Of course, the noble and learned Lord or his successor will doubtless come to us from time to time to explain whether they really need the power under subsection (2) of Clause I to be implemented at any given time and will give us a further explanation, not on that occasion of the particular provision, but the individual necessity which requires the use of that particular power to be made in that particular way at that particular time. I hope there will always be an opportunity for debating this matter, as I think there will be under the Order in Council procedure. Otherwise, I would think the noble and learned Lord has asked for no more than is reasonable; and assuming that his advocacy can get it past the Treasury in these times of financial crisis I have no doubt that it will be a very satisfactory measure indeed.

3.16 p.m.

LORD GOODMAN

My Lords, like the noble and learned Viscount, Lord Colville of Culross, I do not in any way wish to suggest that this Bill is not necessary, or that the powers the noble and learned Lord the Lord Chancellor is seeking are not requisite to the proper administration of justice. In so far as they are required to expedite the hearing of cases, plainly they are of public advantage. I should like to make a comment as a practising lawyer. Very often the delays in the conduct of litigation are attributed to the courts. Most practising lawyers know that only a very small part of these delays are the responsibility of the courts: they are often the responsibility of the practitioners concerned, and very often the responsibility of the parties. Lawyers and the courts earn undeserved opprobrium frequently because long delays are brought to notice which have nothing to do with the administration of the courts. That is something that can be said only by practising lawyers acquainted with the facts.

What I wish to say touches on matters about which the noble and learned Lord said nothing at all, because they are in a sense background matters. I am sure we need extra judges; I would not quarrel with that. I am sure that nobody is better able to judge that than the Lord Chancellor himself, and it would be an impertinence for anyone to presume to try to assess the number of judges which is required at any given time or not to accept from him without dissent what the requirements are.

The matter which concerns me is quite different; that is, the question of the appointment of judges. I do not apologise in the least for raising this matter. We very rarely have an opportunity of discussing this matter in public, and it is only when a Bill of this kind comes to Parliament, either in another place or before your Lordships' House, that one has the opportunity to review matters which I believe to be of cardinal importance to the whole of society. In determining how we appoint our judges, where they are appointed and who is eligible, I think it would be of great importance to ask whether procedures which have become hallowed by time and sacrosanct only by practice—not, if I may say so, by logical or scientific examination—do not need to be considered and studied in rather greater detail than we have had the opportunity of doing.

I have been moved to speak in this debate to-day by a memorandum I have received from the Law Society, which, as your Lordships know, is a body which administers the affairs of solicitors, of whom there are some 20,000. The Law Society is, from my knowledge—although I have never been concerned as anything more than a member; I have had nothing to do with the administration of its affairs at any time—a body which enjoys the respect of all its members, and which is regarded as extremely moderate and in the best sense very conservative, which maintains and which always has maintained an extremely sensible relationship between the two branches of the profes- sion. I am perhaps known to have views that did not entirely accord with those of the Law Society. I was therefore agreeably surprised to discover that at long last the Law Society had decided that something ought to be done about the appointment of judges. It was all anomaly, perhaps an anomaly doing injustice to society as a whole, that every judgeship of every kind should be art appointment from the small body of barristers. This is a matter on which the Law Society presented a memorandum, which I thought admirably drawn and containing very cogent arguments, many of the arguments I had over the years been advancing myself.

It may well be that when the noble and learned Lord the Lord Chancellor has heard what is to be said, to some extent he may be able to meet the arguments the Law Society has asked should be presented to-day. One of their major arguments is that the pool of barristers is a very tiny one. I believe it is a profession of which there are fewer than 2,000 practising members—I think that is a fairly accurate assessment, if not art over-assessment of the number practising. If your Lordships look at the Bill you will see that it provides for, and there are in existence, something like 200 judicial appointments of judges; judges in your Lordships' House, in the Court of Appeal, puisne judges, and county court judges. But there are a great many other appointments that can be filled, or by convention are filled, only from members of the Bar. Magistracies are nearly always filled from members of the Bar. Queen's Bench masters are nearly always appointed from members of the Bar, if not exclusively. Recorders, some of whom are full-time and many of whom have onerous duties occupying a great deal of their time, are nearly always, if not exclusively, members of the Bar.

I calculated on one occasion, and said, that if one took into account those members of the barristers' profession who, in terms of age, mental capacity and other qualifications, were eligible to be appointed as judges, there were more judicial appointments to be filled than the whole number of practising barristers. This is an extremely serious matter. It is obviously a matter that requires careful review. That the pool of persons eligible to be appointed should be less than the number of appointments that exist for them is clearly something about which society must be most concerned.

It is my intention to put down an Amendment at an appropriate stage, and I do not intend to make Committee debate on Second Reading, but should like to consider with some of my colleagues the terms and extent of that Amendment. Certainly it will seek to persuade your Lordships' House that county court judges, at least, should be appointed from among solicitors. But this is not because I am in the slightest degree concerned to advance the cause of solicitors; on the whole, I do not think they are doing particularly badly, or are in need of any poor relief, or require to be appointed as judges because of extraneous reasons. But I think it is the case that a profession that has provided at least one Prime Minister to this country, I believe one or two Chancellors of the Exchequer, and several Home Secretaries, can hardly be regarded as disqualified from appointing some county court judges if made the matter of specialist and careful selection.

The education of solicitors is at least on a par with barristers. On the whole, the standard of the solicitors' final examination, in regard to which I was for some years an examiner, is at least as high as, if not higher than, the requirement of the barristers' examination, for a rather specialist reason: that the Bar take the view that when a man has passed his final professional examination he is not then by any means fully qualified, and the procedure of chamber instruction takes a much larger part in his education at that stage than it takes in the case of a solicitor, who receives his training in articles before taking his final examination.

For that reason, therefore, one can accept, and I hope the House will accept, that solicitors are, in terms of education, fully qualified for appointment at least as county court judges. It is my belief that many will be eligible for High Court Judgeships, and even higher appointments. But I think one should make modest starts, and I believe that when one starts from a position that there is a totally inadequate pool of persons from whom the appointments can be made it is reasonable to suggest that some of those appointments, the minor and lesser of those appointments, should experimentally be held by solicitors. I do not think we should be incurring any risk to the quality of justice in this country; indeed, I believe that we should enhance it. I believe that there are considerable advantages (which it would be laborious to the House to enter into now) in giving some judges a different approach and a different viewpoint, drawing them from different sectors of society, giving them knowledge of activities and so forth that they do not at present have because of the necessarily cloistered and secluded character of a barrister's training would be a considerable advantage.

Many years ago, in the course of a controversy that the noble and learned Lord the Lord Chancellor will recollect, one eminent Lord of Appeal said of a brother judge that the less of sociology that any judge knew the better. While that may have been a relevant statement in those days, I believe it to be totally irrelevant to-day. It is most necessary that judges should know something of sociology, and it is at least necessary that they should know enough of sociology to assess the length of time that a case is taking and the ruinous consequences to the parties concerned in it in terms of the expense involved. I think we are moving in a direction where, on the whole, the liberalisation of the profession in that regard is to be welcomed.

I am anxious to say what I have to say in non-controversial terms. I do not think it is for the benefit of the profession that there should be an issue on this matter. Particularly I do not want it to be suggested that I believe that there is anything wrong with the quality of our judges at the moment. I believe, and I am proud to say, having travelled widely and seen courts in many parts of the world, that there are few countries, if any, which can find judges of the quality, of the learning and the integrity that we are happy to possess. I think we should be very slow indeed to take any measures that would damage that position, very slow indeed to take any measures that might damage the quality and integrity of the holders of judicial office. I should not be making this suggestion if I felt that this was in the remotest degree a likely possibility. I do not think it is. As a small and minor measure, it will not set the houses of this town aflame, nor set anyone by the ears; and in the end we shall decide that it is something that ought to have been done long ago. Solicitors will, at least as a first step, be made eligible for appointments in the county court bench, which I think would be a social advance.

There are a great many arguments which whoever moves the Amendment in Committee will have to adduce and with which he may weary your Lordships' House, but I think the major argument is that most of the advocacy conducted in the county courts is conducted by solicitors. It is therefore ironical and an anomaly that persons who are able to conduct cases, who are regarded as qualified to conduct the cases, should be debarred from being appointed to the Bench to adjudicate on them. It may well be that I am pushing at an open door, and that when these issues are taken into consideration and when the representations that will be made by the Law Society and are being made on all sides of the profession, are taken into account, this is a minor change that will be accepted gratefully. I do not think I need say any more about that.

There is one other thing that I should like to touch on. It is perhaps of a slightly more delicate nature; but I do not see why we should be timid about delicacies that affect everybody. It concerns the question of how judges come to be appointed at all. This is a subject shrouded in abysmal mystery. We do, of course, know that they are appointed by the noble and learned Lord the Lord Chancellor, whoever he may be at any given moment. But how he appoints them, and on what advice he appoints them, whether he has a committee of experts to guide him, how he makes himself acquainted with the competing claims of practitioners then current, he himself having necessarily withdrawn from the hurly-burly of court activity, is a matter on which I think it would be a good thing that something should be known.

I do not believe that in these days mysteries are a sound or a wholesome thing in these matters. In the years that I have been practising law I have (and I regret to have to say it), observed a number of highly deserving practitioners of the law—I am speaking of senior barristers—who in my opinion ought to have been judges. I do not know why they were not made judges. On many occasions where there are particularly strong candidates one hears strange rumours about how they failed to conform with some particular requirement or another. If a man has laboured all his life in a particular profession, if he appears ostensibly to have all the trends which are required for preferment, if he has done nothing wrong, if he has never committed any crime or any infraction of a professional code, it seems to me absolutely wrong that he should not in fact be appointed without some reason being assigned. It seems to me that there should be a good deal more publicity about these matters.

I am sure, for instance, that solicitors ought at least to be asked their opinion about the eligibility of candidates for this preferment. I am sure also that laymen ought to be asked. It seems to me odd, to put it no higher, that in matters that vitally affect all the laymen in this country these crucial appointments should be made, apparently, without reference to a single layman as to the eligibility of the candidate. We know the method that is adopted in the United States; we know that in fact appointments are there made by lay people, on the advice of lawyers. Whether this is the best way to do it, or whether it is better that lawyers should do it on the advice of laymen, I would not presume to say. But it seems to me totally wrong that these appointments should be made entirely on the recommendation of lawyers, enshrouded in secrecy and without anyone really knowing the circumstances in which this sort of thing happens.

I am not suggesting any scandals. I am not suggesting that the appointments that are made are not good appointments. I am only suggesting that at this moment of time, when we have long come to concede that privilege is something that people do not readily accept, and when institutions that have existed for years are no longer accepted at their face value and simply because of their antiquity, it is right that we should have a good hard look at this matter. It would be particularly valuable to hear the views of the noble and learned Lord the Lord Chancellor, and whether he really thinks that the present system is beyond improvement, or whether there are certain respects in which it might be improved.

I should like to make one final observation. Having regard to the tiny pool of persons eligible for appointment to the Bench, it seems to me odd that we have never had an academic appointment to any level of Bench anywhere. We have some of the greatest and best academic lawyers in the world. The literature of English law is renowned as the finest published anywhere. We have great and learned lawyers operating in our universities who are entirely capable of discharging at least appellate functions, if not functions in courts of first instance. Yet we have never had an academic lawyer on the Bench, and yet they would be technically eligible since they are nearly always barristers. This is something to which I should like to draw the attention of the House and on which I would invite comment from the noble and learned Lord Chancellor.

When reading Lives of the Lord Chancellors some while ago, I found that there was an occasion when we got near to the appointment of an academic lawyer—I think it was some time in the 1920s—but the Bar ultimately drew back in horror and some very strange and tortured reasons were found for not appointing him. This is something which requires review. If one considers the wealth of wisdom which has accrued to the Supreme Court of the United States from lawyers like Mr. Justice Frankfurter and other men of great academic distinction, who came from academic backgrounds, it seems odd that we should not make some use of the kind of talent which we possess in this country. I do not apologise to the House for having raised matters which may not strictly be within the terms of the Bill, but this is the first opportunity of saying something on matters which I feel are important and worthy of consideration.

3.32 p.m.

LORD ROYLE

My Lords, in view of the nature of the Bill I speak with bated breath on this subject, but I was particularly interested in the comparative figures given by my noble friend the Lord Chancellor in regard to the number of judges per million of the population in various parts of the Continent and in other parts of the world as compared with those in Britain. Is it not true that those figures would not be the same if we took into account the fact that there are approximately 18,000 lay magistrates in this country and that if one added those 18,000 lay magistrates to the number of what are called "judges" in other parts of the world the figure of eight to the million given by my noble friend would not apply?

One point which may bring a little comfort to the noble Lord, Lord Goodman, is that quite recently two solicitors have been appointed as stipendiary magistrates in very important places. Let it be said that in both cases they were previously clerks to justices. It at least may provide a little comfort to the noble Lord that they have been allowed in. It may be the "thin end of the wedge" I apologise for putting in "a plug" on behalf of lay magistrates.

3.34 p.m.

LORD CHORLEY

My Lords, I apologise for not being here until towards the end of Lord Goodman's speech, but what he was saying then I found of very great interest, importance and significance. I suppose I should confess an interest in this matter, although I am well beyond the age at which judicial appointments are made and therefore have nothing to hope. But as an academic lawyer I have always taken a great deal of interest in this problem of the occasional appointment of an academic lawyer to the Bench, and more particularly to the Court of Appeal, since it is to the Sureme Court in the United States and also to the Federal Courts of Appeal to which academic lawyers have mostly been appointed—at the stage when the administration of justice requires adjudication on a point of law rather than an investigation into some question of fact, which the acadamic lawyer is not really trained to do effectively.

I should like to remind the noble and learned Lord on the Woolsack that an attempt of this sort was made, an attempt in which I played a small part. This was described in Professor Heuston's continuation of the Lives of the Lord Chancellors in his contribution on the life of the late Lord Sankey, who for a number of years was a distinguished occupant of the Woolsack. An attempt was then made to get a lawyer of academic distinction appointed, a man of outstanding quality and of great practical ability, the late Professor Gutteridge, who was the first holder of the Cassel Chair in Commercial and Industrial Law in the University of London and afterwards the first holder of the Chair at Cambridge (which was specially created for him) in Comparative Law. His contributions on comparative law are undoubtedly one of the principal contributions which have been made from an international point of view, because his reputation was much greater in countries abroad where they are interested in these matters than it was at home in England. Professor Gutteridge was a man who was eminently qualified to be a Member of your Lordships' House on the legal side, and certainly of the Court of Appeal.

This suggestion was put at the time to Lord Sankey by the late Professor Laski, at my instigation (I think I should disclose that at this stage) and Lord Sankey gave careful consideration to it. In a letter to Professor Laski, which I remember well because he showed it to me, he said that so far as he himself was concerned he was very interested and thought that it was a good proposal and would strengthen the Bench, but that having made inquiries among his colleagues he found that they felt that it was out of place that an academic lawyer should be appointed to the Bench, however suitable a candidate Professor Gutteridge might be. This is an extraordinarily shortsighted point of view, and I am very glad indeed that Lord Goodman has made the point so strongly. It is quite absurd that, in this year of grace, the administration of justice in this country, and more particularly adjudication on the difficult points of law which are continually arising, should be deprived of the great help which able academic lawyers could give.

3.38 p.m.

LORD SILKIN

My Lords, I do not think anybody in this Chamber will doubt the desirability of the measure introduced by my noble and learned friend. He has made an overwhelming and unanswerable case for an increase in the size of the Judiciary. Indeed, when I heard his intentions I was amazed at his moderation. In the light of what we all know, I should have thought that a much greater increase in the Judiciary was called for.

I was interested in the figures given by my noble and learned friend about the delay in the Chancery Division. From my own experience I know that there is a similar delay—perhaps not quite to the same extent, but something corresponding to twelve months' delay—in the hearing of cases in the Queen's Bench Division. If it is anything like twelve months' delay, then it amounts to a denial of justice. One has to realise that this twelve-month period is not from the date of the initiation of the proceedings, but twelve months from the date when the matter is accepted as ready for trial. There will have been a considerable amount of preliminary proceedings before that; and, assuming that a case comes on for hearing twelve months after it has been set down, it means that it is probably about two years or even longer from the time when the proceedings were first initiated. That in many cases is an injustice.

Let us take as an example a running-down case, where a person has been seriously injured in an accident. Why should it take something like two years before he can get his case tried? One would have thought that a case of that kind, and many similar cases, could be disposed of in a much shorter time, and I would ask my noble and learned friend whether he would initiate some kind of inquiry as to the reason for these delays.

I recognise that he is trying to deal with that part of the delay between the setting down of an action and its hearing. But there is an equal delay in the time between the taking of the proceedings and the time when it is set down, and it is there that I think a good deal of time can be saved. Apart from the injustice to the litigants themselves—the plaintiff, who presumably has a claim and is denied the benefits of that claim; the defendant who has this thing hanging over his head all that time—there is the fact that most cases depend upon oral evidence, the evidence of witnesses, and it is taxing people's memories a great deal to ask them to remember with any degree of accuracy something which took place perhaps two or three years before. I am afraid that a good deal of evidence that is given in the courts, which is purported to be what people remember, is really a piece of guesswork or wishful thinking, and this amounts to the fact that you are not getting true justice. I would ask my noble and learned friend to see what he can do to reduce the period that a trial takes from the time it is initiated to the time when it is heard.

I hope my noble friend Lord Goodman will not feel that he is a lone voice in the matter he raised as to the appointment of members of my branch of the profession to the Judiciary. I suppose he is a very cautious person, and that is why he is sitting on the Cross-Benches, and he is asking only for the appointment of solicitors as county court judges as an experiment. I should have asked for much more, but I am quite prepared to join him, at the outset at any rate, so long as the experiment is not of too long a duration and is made with the intention that, if it is successful, members of the solicitors' branch of the profession shall be eligible for appointment to higher offices.

I am not going to repeat all the arguments that he put forward so forcefully, and he will probably have an opportunity of raising the matter in greater detail during the Committee stage, but I should like just to mention this. My noble friend has just referred to two clerks who have been appointed as magistrates. I do not really take any comfort from that. It is probably in one area alone.

A NOBLE LORD: No.

LORD SILKIN

Then it must be in only two areas, and I still do not take any comfort from that, taking into account the very large number of stipendiaries that there are in the country. The fact is that practically all registrars of county courts are solicitors, and they are entrusted with the hearing of cases of, perhaps, minor importance and subject to appeal to the judge himself. Therefore, in one way solicitors are already acting as judges in the county court and, although the cases they take are perhaps minor cases some of them turn out to be quite important. So far as I know—I have no recent experience, but I had experience years ago—those cases are always conducted in the most satisfactory way. Even if you took the more cautionary step of promoting registrars of the county court to becoming county court judges, it would be a step forward. I hope, therefore, that serious consideration will be given to this matter.

I am very glad indeed that the Law Society have at last resolved to press this point, as they are doing. When we remember, as my noble friend pointed out, that there are fewer than 2,000 barristers, most of whom are not available, and there are 20,000 solicitors, it would be astonishing if from 20,000 solicitors a number of people could not be found who would be suitable as county court judges.

I give a great welcome to this Bill. I hope it will have the effect that my noble and learned friend intends it to have, of reducing the delays that are taking place in the hearing of cases in our courts. I suppose the numbers that he is thinking of will not cause any delays in the way of accommodation or staffing, but I realise that every additional appointment to the Bench involves at the present time a problem of accommodation. I hope that my noble and learned friend may say a word about the accommodation problem. I believe there is a problem in the Law Courts as to accommodation, and perhaps he can tell us whether they could cope with an additional number of judges.

3.47 p.m.

LORD CONESFORD

My Lords, the noble Lord, Lord Goodman whenever he intervenes makes a speech that is stimulating and original and greatly interests the House. When he said that he did not propose to raise this matter by any Amendment to the Bill I think he was right, because his persuasive plea that the noble and learned Lord the Lord Chancellor should be able to choose from a greater number of men than had hitherto been customary was not directly connected in any way with the total number of judges, the matter which alone this Bill affects. It seems to me conceivable, though the noble and learned Lord on the Woolsack is always prepared to deal with everything, that it may have slightly surprised him that that particular matter was one with which he was called upon to deal to-day. Nevertheless, since the noble Lord, Lord Goodman, has raised the very important question of the appointment of solicitors, let me say at once that it is too wide a matter for a member of the other branch of the profession to speak about without much further consideration.

I would, however, say a word about another proposal which I understood him to make, and that was that the noble and learned Lord the Lord Chancellor, in making his recommendations for the appointment of judges, should consult others. I gathered that there would be rather more publicity, or, at any rate, wider circles with whom consultation would have to be made, and to some extent I think that that might lead to public discussion. Without expressing any final view of the interesting suggestion of the noble Lord, Lord Goodman, I should like to give my own opinion, that I think appointments by Lord Chancellors have in fact worked very well. The noble Lord, Lord Goodman, made tribute to the quality of the judges on the Bench, and that makes me think that possibly—

LORD SILKIN

My Lords, how far back is the noble Lord going? Because I have a recollection that in my early days in many cases judges were political appointments.

LORD CONESFORD

My Lords, I was going back, frankly, to the time when I myself was called to the Bar and first took an interest in these matters, and to my experience since then. I agree that I am not going back further than that into history; but I certainly think that what I am saying is true of recent times. In politics, I have been opposed to a number of Lord Chancellors, but I have not been critical of their appointments.

The fact is that the Lord Chancellor, because he has himself been an eminent practitioner at the Bar and has had great experience of the Bar, always has great knowledge of a number of possibilities for appointment, and a considerable knowledge of those whom he may find it useful to consult in forming his opinion, as we can all seek advice, possibly even before the occasion of an appointment arises. Thus there is a tendency for Lord Chancellors to be both well informed and in a position to make a very good appointments and their position would not be improved if it were compulsory for them to consult somebody else. I throw that out as a possible view, because I so much respect any views on this subject put before us by the noble Lord, Lord Goodman, that I wanted to mention an argument against that part of his suggestions.

There is one point I would make about academics, and I honestly do not know whether this will be considered an argument in support of the view that more should be appointed to the Bench or against it, but I know that it is the experience of many practitioners at the Bar that, when one reads some of the learned reviews and articles by very eminent academics, one is often struck by the extraordinary contrast between what they indicate as probable and what every practitioner knows the probability to be in dealing with current and possible legal cases. There is a great contrast, very often, between the academic view of the non-practitioner and the view held by anybody with experience of the courts. I do not know, as I say, whether that is an argument in favour of appointing an academic from time to time to one of the higher courts or against it, but I think it is a relevant consideration.

My Lords, the only other thing I wish to say is a word of thanks to the noble and learned Lord on the Woolsack for the statistics that he has given. A very striking fact to those whose experience goes back a considerable number of years is the extraordinary increase in the numbers of the judges. I cannot recollect any previous speech that so usefully gave a number of statistics enabling us to judge what the increase really means. I suppose the greatest cause of the increase is the great increase in crime, but that again has some relevance to the population. There may be possible answers and criticisms of some of the deductions of the Lord Chancellor—one was given by a noble Lord on the other side; namely, the possible influence of the great numbers of our lay magistracy which had no ready parallel in some of the countries compared—and there may be other comments of the same sort about some of the statistics given by the noble and learned Lord the Lord Chancellor; but I would say that I found those statistics of fascinating interest and express my gratitude to the Lord Chancellor for having given them.

3.55 p.m.

LORD ILFORD

My Lords, it was not my intention to take part in the debate this afternoon. Indeed, I think that the need for the additional judges which this Bill authorises is so clear and outstanding that no argument in support of it is needed. But I was provoked by the speech of the noble Lord, Lord Goodman—or perhaps I should say encouraged by the speech of the noble Lord—to depart from my original intention. It seemed to me that the noble Lord's speech left a very unbalanced view of the distribution of appointments between the two branches of the legal profession. The noble Lord travelled very carefully, as he always does, over all the grounds for change, but he said very little about the grounds for retaining the present system of appointment, which everybody seems to conclude has worked remarkably well.

My Lords, in the distribution of appointments between the two branches of the profession, the solicitors' branch does not come out too badly. Take, for example, the clerks to local authorities. There is no reason why the clerk to a local authority should be a solicitor. But he invariably is, because the practice for many years now has been not to make an appointment outside the solicitors' profession.

LORD CHORLEY

My Lords, perhaps the noble and learned Lord does not remember that until very recent years the Town Clerk of Birmingham was a member of the Bar.

LORD ILFORD

Yes, indeed I do; and I can recall that a good many years ago, when I first began to become acquainted with local authorities, there were one or two other town clerks who were barristers. But to-day, I think, the practice is universally and very rightly followed of appointing solicitors to be clerks to local authorities.

LORD GOODMAN

My Lords, I hesitate to interrupt the noble Lord, but it is happily becoming the case that clerkships in important areas are no longer restricted to lawyers at all. This, I think, is a most welcome development.

LORD ILFORD

What the noble Lord says is perfectly true, but I doubt whether there have been many appointments so far of persons who have no legal qualifications of any kind. Certainly for a good many years the practice has been invariably followed of appointing a solicitor, and I think it will go on being the practice for some time to come. Then, my Lords, clerks to justices are invariably solicitors, and there are a good many of them.

LORD SILKIN

My Lords, is the noble Lord putting these forward as judicial appointments?

LORD ILFORD

No.

LORD SILK IN

That is what we are discussing.

LORD ILFORD

I was putting this forward, my Lords, to redress the balance of the picture which was painted by the noble Lord, Lord Goodman.

LORD SILKIN

One might just as well quote the fact that solicitors are appointed as secretaries of public companies. That is quite irrelevant.

LORD ILFORD

My Lords, what I am drawing to your Lordships' attention is the fact that by established custom certain appointments, which I was endeavouring to enumerate before I was interrupted, are restricted to solicitors. Clerks to justices are invariably solicitors clerks of the peace almost invariably are; and usually clerks of local authorities. It really is not the case that the solicitors' profession is as completely excluded from appointment to judicial posts as the noble Lord, Lord Goodman, sought to convey.

How has it come about that the higher appointments have not hitherto been opened to the solicitors' branch of the profession? I think the real reason is that the majority of solicitors are not interested in appointments and do not desire that they should be eligible for them. Most solicitors regard the conduct of litigation as rather an inconvenience in their office, and many of them try hard to avoid it. If a solicitor is engaged in the ordinary business of a solicitor's practice, he has not the time to devote to work in the courts and invariably leaves that to one of his senior clerks. Of course that is not universally true; there are many solicitors who undertake advocacy in the county courts and magistrates' courts and who do the work extremely well. But they are solicitors who specialise in that class of work; they are not those solicitors who undertake it in conjunction with the ordinary solicitor's practice.

I agree with my noble friend Lord Conesford that this is not a very suitable occasion to be debating these matters If they are to be debated it will be more convenient, and better from many points of view, that we should have a debate to which a little more preparation has been given by many of us. I hope that we shall have the opportunity to discuss these things on a rather wider basis than exists to-day. I am sure we are all grateful to the noble Lord, Lord Goodman, for having drawn attention to these matters and for having dealt with them in such a comprehensive and interesting fashion. I hope that none of us will make up his mind about this matter on the strength of this afternoon's debate. It requires a good deal more consideration than we have been able to give to it to-day.

THE MARQUESS OF ABERDEEN AND TEMAIR

My Lords, I do not know whether the noble Lord, Lord Goodman, wished to widen even more the possibility of various people being appointed to these legal positions. I am sure that many of us must have seen in a magistrates' court a lady in the chair, administering justice with knoweldge of the law and with great ability and sympathy. I wonder whether at some time we may even see judges who are ladies.

SEVERAL NOBLE LORDS: We already have them.

4.4 p.m.

LORD LEATHERLAND

My Lords, I am going to be as irrelevant as every other noble Lord who has spoken this afternoon. I am also going to be brief. I want to say that I should not like to see a system of lobbying for High Court appointments such as the one suggested by the noble Lord, Lord Goodman—although he did not use the word "lobbying". I think that the greater the degree of purity and impartiality there is in High Court appointments, the better it is for the country. On the whole, we get that kind of appointment; although, of course, my noble friend Lord Silkin was right in pointing out that 10, 20, 30 or 40 years ago there were large numbers of appointments to the High Court Bench made solely because Mr. So-and-So happened to be a good Conservative M.P. I remember the appointment of one such judge with a name possibly now common and frequently heard in my own Party—

LORD ILFORD

Or a good Liberal M.P.

LORD LEATHERLAND

My Lords, this ought not to be a "closed-shop" debate for members of the legal profession. I have risen as a layman. I was not particularly enamoured of the suggestion made by my noble friend, Lord Chorley, and by the noble Lord, Lord Goodman, that more academic lawyers should be appointed to the High Court Bench. The job of the academic lawyer who sits in an ivory tower studying what now is and what might conceivably be some time in the future is quite different from that of the lawyer working day by day in public courts. The academic lawyer is not dealing with the hard facts as they are presented at that particular moment.

I was not particularly impressed by the fact that my noble friend Lord Chorley quoted the late Harold Laski as co-author of this particular kind of scheme. Harold Laski was a much-loved friend of mine for many years; but I recall that in 1945 he caused me a considerable amount of trouble in the libel world by the famous speech ha made in Newark market-place. I would not necessarily take the guidance of Harold Laski on this question, although, of course, I would do so in many other realms of human endeavour.

The noble Lord, Lord Goodman, clamoured for the appointment of solicitors. I agree with him in so far as he suggested solicitors for county cows, because I think the county courts are conducted with a good deal of informality, and the day-by-day contact which solicitors have with ordinary people might possibly be a point in their favour. But when the noble Lord suggested that there are 20,000 solicitors as against 2,000 barristers and that therefore it would as well to fish in the pool of solicitors as in the smaller pool of barristers, there I would not agree.

The noble Lord, Lord Ilford, has already mentioned that you must exclude from those 20,000 practising solicitors all who are clerks to local authorities. There are 1,000 local authorities in this country and all—with the exception of the very small—have solicitors as their clerks. The bigger authorities have another solicitor as their deputy clerk, another as their assistant clerk, and probably eight or nine others acting in charge of various departments of the council. In my own council we have about a dozen of them.

When you are assessing the size of this pool, you must eliminate the old solicitors, those nice, old, silver-haired solicitors who sit in their offices in the market towns and carry on the business of the local laird with efficiency, but who would be completely lost if they were thrown into the cut-and-thrust atmosphere of a High Court, or even a county court. We must also subtract from the list all those who are very young and who are now learning the rudiments of their profession; and those who leave the bulk of their work to their managing clerks, who are unqualified people. We also have to exclude those who carry out almost full-time jobs as chairmen or directors of some kind of public company. And if we are realistic we must also exclude those who have never seen the inside of a court in the whole of their lives; whereas a barrister spends the bulk of his time in court. I do not want to say anything against solicitors as a whole, for if I ever get into trouble the first person I shall run to will be a solicitor.

4.9 p.m.

THE LORD CHANCELLOR

My Lords, we have had a very interesting discussion. In reply to the noble Viscount, I would say that I agree with him that this Government have passed some quite exceptionally complicated legislation. This may, of course, lead to more litigation and therefore to more judges. But I regard—as I know the Law Commission do—the complexities of modern statutory drafting as something with which we ought not to be satisfied, and to which we must find a solution. I agree with the noble Viscount that it would be a pity if we had no Commonwealth judges coming to sit on the Privy Council. All I am concerned to avoid is the case in which, if we cannot get someone, the Privy Council cannot sit at all.

I should have mentioned the fact that judges—not only appellate judges, but most judges—do a great deal of work out of court hours, not only in relation to cases they are trying but on various committees. It may be worth remembering that there are now 37 High Court judges and 14 county court judges sitting on commissions or committees of one kind or another—and not only the Law Reform Committee, the Criminal Law Revision Committee, the High Court Rules Committee and so forth. Most of the work is done out of court hours. Where there are a number of laymen sitting on a committee it may be necessary—particularly if they come from outside London—to sit all day; but normally the work is done outside court hours. I was, I think for eleven years, a member of the Lord Chancellor's Law Reform Committee and we always sat at the end of a long day's work.

My noble friend Lord Royle is, of course, quite right to draw attention to what is literally the millions of pounds which the justices of the peace save the taxpayer (who is not in the least bit grateful for it) because they try 98½ per cent. of all the criminal cases—1,400,000 a year. I have no doubt that the difference between the English figure of 8 and the Scottish figure of 15 is largely accounted for by this; because most of the work which our lay justices do in England is done in Scotland, as I understand it, by the sheriffs substitute, who are all whole-time professional judges. The difference between Scotland and most of Western Europe and our old Dominions, in relation to the number of judges per million of the population, shows, I think, the real difference.

The noble Lord, Lord Goodman, and my noble friend Lord Chorley pressed the claims of academic lawyers to the Bench. I have not by any means a closed mind about it. It is, I think, in general desirable that an appeal judge should have had personal experience of the trial of cases; you cannot really tell what happened simply from reading a transcript. Whether the finest scholar among the academic lawyers would be very happy on being appointed as a puisne judge to go straight off to Newcastle, or somewhere, to try murder cases and so forth when, unlike those who are appointed, he has not perhaps spent any of his time as a trial judge, is again open to question. But, as I say, I have not closed my mind about this matter. The last appointment I have recommended is that of Mr. Justice Megarry in the Chancery Division. As we all know, he is a first-class academic lawyer who has, perhaps, divided his time pretty equally between academic work and practising work.

The noble Lord, Lord Goodman, and my noble friend Lord Silkin—particularly, I think, the noble Lord, Lord Silkin—raised the question of delay. I have made plain that I think that twelve months is too long. It is perhaps worth bearing in mind that (although I have always been surprised at it) we are in fact much quicker than almost any country I know; particularly in dealing with criminal cases. Our tradition of trying people very quickly, and getting actions on for trial quickly, is a very good one which I hope we shall not lose. One has, of course, to divide the time into two. It has always been the case here that courts leave to the parties the bringing of a case to the door of the court. Anybody, after he has issued a writ, can hurry a case up or slow it down. The other party have a series of measures which they can take if they want to adopt the opposite course. But ordinarily, the court has no control over a case until it is set down for trial.

I am not sure whether or not that is a good thing. There are often reasons why parties do not want to bring cases on too soon. For example, in a case involving personal injuries, if it is one in which doctors say that arthritis or epilepsy may develop, if the judge has to assess the damages before any further prognosis, he has to do it on the footing that there is a fifty-fifty chance that something will develop. Might it not be more satisfactory to delay the assessment of damages until one knows what has happened? So there may be good reasons why cases are not brought on earlier; but I agree that twelve months is too long. It is not quite so bad in the General List of the Queen's Bench Division; but it was that time in the Chancery Division, and that is too long.

My noble friend also raised the question of accommodation, and this is a difficulty. Our court accommodation is shocking; and, of course, we are in times when all forms of public building are not to be encouraged. But when our economy allows, there is a really big programme of court building to be done. It is chaotic because it is completely irrational. It is no good the Government saying that there ought to be an Assize at such-and-such a town: it has nothing to do with the Government; it is entirely for the local authority. The same is true of quarter sessions. When it comes to the magistrates' courts, it is, theoretically, for the local authority magistrates' court committee to persuade the authority that they must have a new magistrates' court but as the Home Office pays 80 per cent. of the cost, the local authority, in practice, does not mind.

When it comes to the Law Courts in the Strand, and all the county courts throughout the country, it is a matter for me and the Ministry of Public Building and Works, so there is no co-ordinating authority about court accommodation at all. There are over 400 places where county court judges have to sit and I have only about 90 purpose-built county courts. For the rest I am scratching round to find somewhere for the county court judges to sit—in a room in a town hall, or in some village hall, or in the magistrates' court, if it is not being used. One result of this lack of co-ordination is that there are cases where the local authority decide to build a new court building for, say, two quarter sessions courts and magistrates' courts and this provides economies of scale. But they forget altogether the county court, which is the worst off, because that does not come under their jurisdiction. I think it is time we had some co-ordinating authority, and I am gravely disturbed at the present condition of most of our court buildings.

May I take an example which is typical of the unco-ordinated efforts in this field? The maximum number of judges which can be appointed additional judges to the Central Criminal Court is entirely a matter for the City of London. They deal with this under a City of London Various Powers Act. The City pay for the judges and for the Central Criminal Court and how many courts there are is entirely a matter for them. For the last three years I have been in the position that although there are only four regular courts at the Central Criminal Court, another was carved out on the ground floor and the Library and a committee room were turned into courts. There are no more rooms which might be turned into courts. I can appoint commissioners but I cannot appoint any additional judges because the maximum number has been reached, and there was no City of London Various Powers Act under which action could be taken.

When this question was taken up with the City (they are always very generous in these matters) they found a building immediately opposite and quickly produced three temporary courts to which I could appoint commissioners to sit. But that was all I could do, and the state of things at the Central Criminal Court has been getting worse and worse. Men who could not get bail have been staying in prison for three or four months before their trial—men who, when they are tried, may be found to be innocent. When at long last the City of London produced a Various Powers Bill last Session, it got hung up in another place, not over the increase in the number of additional judges but because of something to do with the City walk-ways and, I think, something to do with Epping Forest. This shows the Lord Chancellor's difficulties. The noble Marquess, Lord Aberdeen and Temair, encouraged me to appoint women. I am, my Lords, the first Lord Chancellor to appoint a woman High Court judge. I have recently appointed a county court judge and two stipendary magistrates who are women; so that, I think, is one score on which I cannot be attacked.

I come to what was said by the noble Lord, Lord Goodman. So far as appointments are concerned, there is no doubt at all that the whole standard of the High Court Bench and of the county court Bench has markedly improved since the time when I was called to the Bar; and I know of no lawyer who would think otherwise. If that is so, I suggest (leaving aside for a moment the question of solicitors) that so far as the Bar is concerned it seems that whatever method the Lord Chancellor employs has had a satisfactory result. I agree with the noble Lord, Lord Conesford, and with the noble Lord, Lord Ilford, that if that is so, there is a good deal to be said for leaving the method of appointment as it is. I will come on later to the question of solicitors.

The method of appointment is a simple one. The work is done by the Lord Chancellor himself, and he consults any- one he thinks fit. It is much more important, I think, than anything else the Lord Chancellor does, more important than his office as Speaker of this House, and more important than his Cabinet work. Because however good the law is, if a judge is appointed who ought not to have been made a judge then everything is wrong. If I am asked what my qualifications are, I can only say that I have spent my whole life among barristers. I was a member of the Bar Council for four years before the war and for four years after the war, and subsequently I was twice elected Chairman of the Bar Council. I have visited every Bar in the country, and therefore I really do know the Bar. It has been suggested that a statutory obligation should be put upon the Lord Chancellor to consult some laymen, but I do not know who the laymen would be. If I had 40 applicants for county court judgeships and one had to be appointed, what laymen I have to ask about these 40 men, most of whom I know myself, I do not know.

The question of the appointment of solicitors is a very old one. This Bill is … to make provision with respect to the maximum numbers of Lords of Appeal in Ordinary and certain other judges. I apprehend that the introduction of the appointment of solicitors would be outside the objects of the Bill, but it is a very appropriate point to raise in discussion. My difficulty is that the Bar Council and the Law Society, and nearly everybody I know who has been into this point, is of opinion that the public interest is best served by having a divided profession rather than a fused profession. But this is very much a matter on which people may differ. The noble Lord, Lord Goodman, is a fervent fusionist.

If we are going to retain a divided profession, then we ought to think before we alter the balance between the two halves of the profession. I think that in a small country like this, with a large population, and on the whole a reasonable railway and road transport system, a divided profession gives a better service to the public. Under any system those who do High Court advocacy are a separate body. In America, there is the Trial Lawyers' Association, which is more or less a Bar. The large firms have an advocacy partner. In New Zealand there is a fused profession, which is gradually becoming defused, because although there are firms in which barristers and solicitors are practising together, the advocacy work is done by the advocacy partner. A few years ago somebody applied for a new practising certificate as a barrister only, left his firm and set up on his own to do High Court advocacy only and then only on the instructions of a firm of barristers and solicitors. This has become popular with small firms, because one of the first things that happens on fusing the profession is that whenever the small firms find High Court litigation which they cannot do, it has to be sent on to large firms and their clients do not come back. The small firms all went to this High Court barrister. A member of the New Zealand Bar who came to see me a few years ago told me that there were then six barristers only, and as they were in court every day, and the advocacy part was only occasional for large firms, the latter were no match for the former, and it was only a question of time before the barristers only got an exclusive right of audience. Here we see a fused system become defused, not on any theoretical ground, but simply because under any system those who do High Court advocacy are a separate body, because High Court advocacy is a different function.

Medicine is a fused profession. There is nothing to stop any doctor with the requisite qualifications from being a general practitioner in the morning and a consultant and surgeon in the afternoon, though that would not work because surgeons are a separate profession who have to see in the mornings those whom they operated on the night before. In 90 per cent., or whatever it may be, of the cases who go to see doctors, they are looked after by the doctors all right. Only occasionally does the doctor say that they have to see a specialist or surgeon. In the same way, in 97 per cent. of cases solicitors are perfectly capable of dealing with their clients' problems, and only in 3 per cent., or whatever it is, do they have to say that this means High Court litigation and that the client ought to see a barrister or, for instance, that the client's tax position is much more complicated than any tax matter he has met before and that he ought to get an opinion of a counsel who is a specialist on taxation.

One of the last cases I was in was a long case that took a great judge six weeks to try. My opponent in the Court of Appeal talked for three weeks before I had a chance of saying anything at all. Every night I had to study the cases he had cited during the day. How can one be a solicitor at the same time, answering correspondence, seeing other clients and making diary entries? The thing is impossible. That is why we have. High Court advocates who spend their lives in the High Court. It has been the practice in England to appoint judges from those who have spent their lives doing this, and every High Court judge knows exactly what is going on behind an action. If he sees a barrister turn round and whisper to his solicitor he has a pretty good idea what he is saying.

Solicitors have never had this responsibility. It might be said that if they have not had this responsibility because the Bar has a monopoly of High Court work, why not, while keeping a divided profession, let solicitors appear in High Court cases? I think that this is completely impossible and untenable, for this reason. There are all sorts of things of which solicitors have the monopoly which barristers are strictly forbidden to do. They are not allowed to deal with clients directly, or to make any financial arrangements with clients. They are not allowed to do conveyancing. There are some very fine conveyancers in the Chancery Division who are conveyancers to the court, but they are not allowed to do any conveyancing for clients. This is the solicitors' monopoly. They are not allowed to go on the boards of client companies. Some solicitors do very well indeed by being directors of large companies.

What do barristers get in return for this? They get two things only: judges are appointed from the Bar and they get a monopoly of High Court advocacy. If these were taken away, who on earth would be a barrister? There would be no possible object in being a barrister—you have only to be a solicitor and you could do everything. This would be fusion. People like the noble Lord, Lord Goodman, might be in favour of fusion. To say that we should keep a divided profession and let solicitors share the only two privileges the barristers have is equivalent to a fused profession.

It is an interesting subject, one on which no doubt different views may be held, but unless and until it is decided that we should be better off with a fused profession, any Lord Chancellor concerned with the question of appointments ought to hesitate before he makes some radical departure from the existing balance between the two halves of the profession.

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