HL Deb 08 March 1977 vol 380 cc968-74

Lord McCLUSKEY rose to move, That the draft Maximum Number of Judges Order 1977, laid before the House on 15th February, be approved. The noble and learned Lord said: My Lords, I rise to move the Motion standing in my name—the last one on the Order Paper. This order deals solely with Scotland and is made under Section 1 of the Administration of Justice Act, 1968. That Act fixed the maximum number of judges in the Court of Session at 19 but provided that that maximum could be increased by Order in Council, subject to prior approval by Resolution of each House of Parliament. The number was in fact increased to 20 at the end of 1972, and the purpose of my Motion is to secure the approval of this House to a further increase.

The background to this Motion is the continuing increase in the volume of work entering the Court of Session and the High Court of Justiciary: that is the Criminal Court. The indications are that this trend will continue. In the Court of Session the number of civil actions initiated has increased by fully 45 per cent. since 1972. Much of the growth is attributable to divorce actions and these, following the coming into operation in Scotland on 1st January of the Divorce (Scotland) Act 1976, are likely to show further substantial increases, particularly if the experience in England and Wales following their comparable legislation, which became effective in 1971, is repeated to any degree in Scotland—as we expect it to be.

As to criminal work, all the Judges of the Court of Session in Scotland are also Lords Commissioners of Justiciary and are responsible for the whole of the original criminal work of the High Court in Edinburgh and on circuit and for the work of the Court of Criminal Appeal. There, too, there has been an apparently inexorable upward trend in business, both in the number of trials and the duration of hearings. The effect may best be illustrated by the number of working days on which judges have had to be provided for High Court duty on criminal cases. In 1972 the total number of "judge days" was 478; in 1976 it had risen to 598—an increase of some 25 per cent. I think I can say it is not just a question of pure numbers, because as the volume of work increases there is a geometrical rather than an arithmetical progression in the difficulties of making the necessary arrangements, especially in relation to criminal business.

It is worthy of note that this substantial increase in business has largely been absorbed hitherto without producing an unacceptable level of delay. This has been possible only through skilful reorganisation by the Lord President of the Court of Session and his colleagues in making the working arrangements in the Supreme Courts better, and in making more efficient use of judicial time. But recently it has become apparent that saturation point has been reached. At the present level of business, strains have become evident and there is little or no room to cater for the further increase which now seems to be imminent. Indeed, because of the need to employ Inner House judges—that is, appeal judges—on Outer House work, it has often been impossible to have both Divisions of the Inner House sitting at once, although there is a continuing body of civil appeals; and sometimes, when Inner House judges are also engaged in the disposal of criminal business, it has not been possible to form any Division in the Inner House for appeals at all.

The position is further affected by the need to allow for the many extraneous duties undertaken by the judges in the exercise of their public responsibilities. The Lord President and the Lord Justice Clerk have, among other responsibilities, special extra-judicial responsibilities in Europe and in Scotland. Most of the other judges act as chairmen of or participate in public tribunals, commissions, and committees of many kinds. One, for example, is the whole-time chairman of the Scottish Law Commission. Another is chairman of the Employment Appeal Tribunal, which at the moment occupies about half of his time. Yet another judge is heavily occupied in a comprehensive review of criminal procedure, which has been in operation for some years and still has further substantial areas to consider. Without going into detail, other judges are involved in work of this kind. Indeed, the judges render a great public service outwith their formal duties on the Bench. The complement also has to allow for absences through sickness or other emergency, and recently such contingencies have resulted in the cancellation of allocated business.

There has undoubtedly been an improvement in recent years in the organisation of work both in the Court of Session and in the High Court—the criminal court. I can assure your Lordships that the Lord President and his colleagues, who are responsible for this, are anxious to make further improvements if these can be identified, but we have now reached the point where I have no alternative but to recommend the present order to the House. I must, however, underline that the present aim, shared by the Lord President, is to make only one additional appointment immediately. Allowing for this and the possibility of further reorganisation, it may be unnecessary for some considerable time to fill the second post which the order would allow. That would be dependent on experience and a demonstrable need for such a second post. My Lords, I beg to move.

Moved, That the draft Maximum Number of Judges Order 1977, laid before the House on 15th February, be approved.—(Lord McCluskey.)

5.33 p.m.

The Earl of MANSFIELD

My Lords, it behoves me, I believe, to gang warily in this respect because, for the benefit of the noble Baroness, Lady Phillips, in this connection not only am I not learned; I am not even qualified. So with that little stricture in mind, I preface my few remarks. There is no doubt about it that when this order was debated in the other place it aroused no little fury, one might even say contumely. Indeed, the matter was pushed to a Division, so ferociously was it fought, and the Government managed to win through only by the casting vote of the Chairman. I have therefore considered deeply what we should do about this matter in your Lordships' House, but I think that on this occasion—and I say this for the benefit of the noble and learned Lord, Lord McCluskey—we will be able to fulfil our public duties without necessarily pressing this matter in the way that it was pressed in another place.

I went along to the Library when this matter first came to my notice to see what was the personnel position North of the Tweed and I found that, so far as advocates are concerned, the number of advocates in Scotland is rather fewer than the total number of members of the Bar at the Liverpool local Bar. I do not say that in any sense of denigration; there is nobody who has more admiration than I for the quality of Scottish advocacy and, indeed, judgeship. I draw this parallel only to show that it is a much smaller and, dare I say it, more cosy world than perhaps we know of in England.

One of the matters which occupied a considerable time in the other place was the fact that, apparently, the Scottish Court of Session does not sit on Mondays and certain of my honourable friends there regarded this as a thoroughly idle and dissolute hangover from the last century. In those days, all Scottish judges of the Court of Session were landed gents and it seems that they took Mondays to get from their estates to Edinburgh, in order to commence their judicial duties on Tuesdays. Nevertheless, it is fair to say that the Lord Advocate did not produce any very pressing argument as to why the Court of Session should not now, in the last quarter of the twentieth century, commence to do its work on Mondays, and I wonder whether the noble and learned Lord, Lord McCluskey, might be able to put up a rather better performance in that regard. I am very well aware that a few judges sit on Saturday mornings for two hours to hear undefended divorces, but I am not sure that that is quite the same thing, and one wonders whether the best use is being made of judge time.

The point of these remarks is not entirely frivolous. In the last clutch of orders we were helping the noble and learned Lord, possibly, in the opinion of my noble and learned friend, to be what I might call penny-wise. Are we now sanctioning the noble and learned Lord, Lord McCluskey, and the Secretary of State for Scotland to be pound foolish, by allowing an increase in the establishment of judges beyond the Tweed from no fewer than 20 to 22? What does the noble Lord think is the cost which will fall on the shoulders of the taxpayer through this increase? May I also just say this? In England we have been used for very many years—certainly, since the days when I started to practice—to undefended divorces, at least, being heard by county court judges who are perfectly able, sitting as special commissioners, to discharge that function. I should be the very last to say that Scottish law must follow English law. Nevertheless, divorce law in Scotland is moving along the same track.

The new Act, which I believe comes into force on 1st April—the noble and learned Lord will correct me if I am wrong—will bring Scotland into line for the first time, and will produce a much needed reform over the breakdown of a marriage and the consequent divorce. But has any thought ever been given to undefended divorces being tried, for instance, by sheriffs who seem to me to be very excellent judges in their own sphere? Is it necessary for the equivalent of a High Court judge to hear undefended divorces, especially when such matters as, what we call in England, collusion and so on will not enter into the sphere of things after April? I hope that I have not done more than enter one or two caveats on what is proposed in this order. Subject to that, I am quite sure that the noble and learned Lord, Lord McCluskey, can satisfy us that this extra expenditure is well merited.

6.39 p.m.

Lord McCLUSKEY

My Lords, the number of advocates is smaller in Scotland and, undoubtedly, that leads to what friends would call a more cosy atmosphere, and to what others would describe as a somewhat incestuous atmosphere. May I just demonstrate that it works in this way? I had the duty of conducting what turned out to be the longest criminal trial in Scotland since the outbreak of the Second World War. It lasted for 18 days, which was exceptionally long. But I think that, partly because of the organisation of our business and the manner in which we work, we get through our work rather more swiftly than our colleagues South of the Tweed.

In relation to the remarks of the noble Earl about a thoroughly idle and dissolute hangover from the last century, I think that the Member who drew attention to these matters was the one who succeeded the noble Lord, Lord Home, and who is an expert on these matters. He drew attention to the fact that the court does not sit on a Monday. The Court of Session has never sat on a Monday, except perhaps in emergencies. It sits on Saturday mornings when five to six judges hear, as the noble Earl mentioned, a number of divorce cases. The criminal courts do, of course, sit on Mondays. The matter has come up for consideration many times over the years. The Faculty of Advocates and practitioners generally are strongly opposed to the court sitting on Mondays. There are many difficulties in the way.

I should not like noble Lords to believe that the court could not sit on a Monday, but it would bring fewer benefits than might be imagined. It would be less easy to introduce the change than might readily be thought. Certainly we would be bound to lose Saturday mornings, which are extremely convenient for the hearing of divorces, particularly for people and witnesses who cannot readily attend during the week. As I say, it would be extremely unpopular with practitioners. Mondays are used by that same small body of advocates in Scotland to attend sheriff courts and tribunals, to sit as chairmen of tribunals and also to consult and prepare for the cases which they deal with on Tuesdays, Wednesdays, Thursdays, Fridays and Saturdays. In these circumstances, I do not think that there would be many supporters for such a change in Scotland. Comparisons with England are perhaps too liable to mislead. In any event, the noble Earl will be aware, as we all are, that the Royal Commission on Legal Services in Scotland is considering, among other things, the structure of courts and general arrangements for the supply of legal services, and it will no doubt take these remarks into account.

In relation to divorce, may I say that the new Act has been in force in Scotland since the beginning of the year. So far only one divorce has come before the courts but there is expected to be a substantial number in about two months' time. Of course, the question as to whether divorces should be heard in the sheriff court has been argued over many times. The short answer at the moment is that the sheriff courts have enough business to handle and could not handle the 13,000, 14,000 or 15,000 divorces that they would be liable to get if divorces were sent to the sheriff court. My Lords, I hope that the considerations which have been put forward have been adequately answered. On the matter of cost, I should say that the cost of one additional judge, including his salary and the salary of his clerk but all before tax, is some £30,000.

On Question, Motion agreed 10.