MAXIMUM NUMBER OF JUDGES ORDER 1972 (Hansard, 14 December 1972)

THE LORD CHANCELLOR

My Lords, I now rise to move the third of the Motions in my name, which is the fourth on the Order Paper: that the Draft Maximum Number of Judges Order 1972, laid before the House on November 28, be approved. My Lords, this Order deals solely with Northern Ireland and Scotland—it does not apply to England or Wales—and it is made under Section 1 of the Administration of Justice Act 1968. I have been asked by the Leader of the House and by my right honourable friend the Lord Advocate to deal this time and for the nonce with the Scottish aspect of 763 the question, and I hope to do so without too many fiery crosses being lit on the heather. As for many years the appointments to the High Court of Northern Ireland have rested with the Lord Chancellor, the rest of the Motion is actually within my own Departmental territory.

So far as Northern Ireland and Scotland are concerned, the Administration of Justice Act 1968 fixed the maximum number of Judges of the Court of Session at 19 and the maximum number of puisne Judges of the High Court in Northern Ireland at four, but it went on to provide that these maxima can be increased by Order in Council, subject to prior approval by Resolution of each House of Parliament; and the purpose of my Motion is to secure the approval of Parliament in each case to such increases.

If I may deal first with my own subject, Northern Ireland, the Act of 1968 raised the maximum number of puisne Judges of the High Court in Northern Ireland from two to four, and the appointment of an additional two Judges, raising the actual number from two to four, was made immediately afterwards. That is the four, maximum and actual, ever since. In that year the number of Queen's Bench actions pending at the beginning of the Michaelmas term was 526 and the number of criminal cases awaiting trial was 332. The immediate effect of the two additional Judges appointed in 1968 was to enable 802 Queen's Bench cases to be disposed of and to reduce the number of cases pending in 1969 to 459. Alas! since then, despite further increases in the number of cases disposed of—there were 928 in 1969, 951 in 1970 and 944 in 1971—the number of actions pending has steadily risen—that means a bigger backlog. It rose from 459 to 842 in 1970 to 881 in 1971 and, alas! to 1,099 at the beginning of the present term. The latest information is that pending cases have risen still further, to 1,164 on December 6 this year. I am sure that the House will agree that this is not tolerable even for civil litigants. For those defending criminal proceedings the position is still less acceptable.

The Judges have not been able to dispose of so many Queen's Bench actions this year as they did last year. Up to December 6, 744 cases were disposed of, 764 compared with 944 in the whole of last year. This is because of the pressure of dealing with criminal cases which keeps two Judges continuously occupied. In the last year there has been a virtual explosion in the number of prisoners awaiting trial in custody. Including those awaiting trial in the magistrates' courts and county courts the number has increased from 71 last year to 288 last September. Criminal cases for trial at assizes by the puisne Judges have increased in number from 332 in 1968 to 410 last year, and at December 6 this year had reached a total of 645.

In addition to their work in the Queen's Bench Division of the High Court and at assize, the puisne Judges of Northern Ireland also deal with Chancery cases and matrimonial causes. This work has not increased to the extent of their other work. Nevertheless, there were four Chancery actions and 83 matrimonial causes pending last September and judicial time has to be given to these.

In these circumstances, the House may agree that if there are not to be even more serious delays in the trial of both civil and criminal cases in the High Court in Northern Ireland, it is essential that an additional Judge should now be appointed. The Order prescribes the maximum number of Judges only. I can assure the House that should the position improve at any future time consideration will of course be given to the possibility of reducing their number.

My Lords, I add only this on the Northern Ireland side. We are under pressure and it is our policy to use the ordinary courts as much as possible to the exclusion of the extraordinary system of detention that we were discussing the other day. That means that of necessity we should be reasonable and generous in providing the number of Judges to handle the flow of work thereby involved.

I now turn to Scotland where the position, though quite different, has resulted in effect in a request in the same Resolution for an increase in the number of Judges. In Scotland, the maximum number of Judges has also stood unaltered at 19 since that number was fixed by the Administration of Justice Act of 1968. The actual number of Judges in post previous to the Act of 1968 was 18; and this had been the 765 position for two years, since 1966. An additional appointment was made in 1971 mainly in order to deal with the substantial increase in both the civil and criminal business coming before the court. Between 1966 and 1970 the actions and petitions coming before the court had increased by 35 per cent.; those pending had increased by 39 per cent.; and the number of High Court cases and appeals had increased by 26 per cent. All Judges of the Court of Session are Lords Commissioners of Justiciary and are therefore responsible for the whole original criminal work of the High Court in Edinburgh and on circuit and for the work of the Court of Criminal Appeal.

The volume of work, both civil and criminal, entering the courts has continued to increase and the indications are that this trend will continue. Leaving aside petitions, interdicts, Inner House appeals and the work of the specialist branches of the court, some 700 additional civil cases were begun in 1971, and by the end of this year a further 1,000 cases will have been started; that is, a 10 per cent. increase in 1971 and a further 12 per cent. by the end of 1972. Because of the wide variations in the duration of hearings, the effect of High Court criminal trials and appellate criminal work can best be measured by the number of working days on which a Judge has had to be provided for High Court duty in criminal jurisdiction. In 1970 and 1971 the figure remained at 380 days, but the total for 1972 will be over 470—an increase of over 24 per cent.

In this situation it has been possible to avoid a reduction in the total number of defended actions put out each week for proof or jury trial only at the expense of a build-up of cases standing in the Procedure Roll for debate and of the work of the Inner House. Indeed, because of the need to employ Inner House Judges on Outer House work, it has often been impossible to have both Divisions of the Inner House sitting at once; and sometimes, where Inner House Judges are engaged in the disposal of criminal appeals, to form any Division in the Inner House at all.

766 At the present time the problems are exacerbated by the fact that the Valuation Appeal Court is disposing of appeals arising out of the recent Quinquennial Valuation of Heritage. In the current session, 60 Judge days will have been occupied in disposing of such appeals; this represents the time of three Judges for five weeks of the session. Since the last date for disposal of appeals by the Valuation Appeal Committees has been postponed until March 31, 1973, it is anticipated that a similar demand upon judicial time is likely to be made during next session and perhaps also during the summer session of 1973.

It must also be borne in mind that the complement of the court has to cover the various extraneous duties undertaken by the Judges. I refer here to chairmanship of public tribunals, commissions and committees of many kinds. Recent examples are the Royal Commission on Local Government in Scotland and the Commission of Inquiry into Civil Disturbance in Northern Ireland where a Scottish Judge chaired the Board of Inquiry. One of the Judges is the whole-time Chairman of the Scottish Law Commission, another is a member of the Industrial Relations Court which occupies him for one week each month, and another has recently been appointed to the parole board. The complement also has to allow for absences through sickness; recently, no less than three Judges were ill over the same period.

I would therefore ask the House to accept that, if serious delays in the disposal of business are to be avoided, it is essential to increase the maximum number of Judges in the Court of Session from 19 to 20. And while it is proposed, subject to the concurrence of the Treasury, to make an additional appointment as soon as possible—the figure given is the maximum—the position will be carefully reviewed as vacancies occur and they will only be filled if the need is clearly established. I beg to move.