MAXIMUM NUMBER OF JUDGES ORDER 1978 (Hansard, 17 July 1978)

§ The LORD CHANCELLOR
My Lords, I beg to move that the draft Maximum Number of Judges Order 1978, laid before the House on 20th June 1978, be approved. The order arises from the need to enable the Court of Appeal to cope with the continuing increase in the number of appeals reaching the court as well as the growing complexity of the appeal cases following long criminal trials. The purpose of the order is to raise the maximum number of ordinary judges of the Court of Appeal from 16 to 18.
I emphasise the word "maximum" because the order does not commit either the House or me to any particular appointments, and an appointment would only be recommended when I am satisfied of the need for it. Nevertheless, the state of business in the Court of Appeal is such that I think it will in fact be necessary to recommend at least one further appointment if this draft Order in Council is made.
I should like to explain briefly why it is necessary to seek the approval of the House for this order. Under Section 1(1)(b)(i) of the Administration of Justice Act 1968, the maximum number of ordinary judges of the Court of Appeal—that is the Lords Justices—was fixed at 13. Section 1(2) and (3) of that Act provides, however, that the maximum may be increased by Order in Council, subject to the draft order being laid before Parliament and approved by Affirmative 98 Resolution of each House. The maximum number of ordinary judges of the Court of Appeal was so increased from 13 to 14 in July 1970. It was further increased from 14 to 16 in July 1975 and there are now 16 Lords Justices in post. It is accordingly necessary for me to promote this order if further full-time appointments to the Court of Appeal are to be made. I may say that the order has been approved already in another place.
As your Lordships will know, the Court of Appeal deals with both civil and criminal appeals and the civil and criminal divisions of the court have been faced with very considerable extra work. In the civil division, since 1972 the number of appeals set down has risen steadily from 1,108 in 1973 to 1,359 in 1977. That upward trend has continued in the period up to the end of May this year. The number of criminal appeals also continues at a high level and, I fear, shows no sign of diminishing; nor indeed do the cases coming for trial to the criminal courts. The number of outstanding criminal appeal cases has risen from 2,144 at the end of 1975 to 2,684 at the end of 1977. There were 2,715 cases outstanding on the 26th May, 1978.
A normal sitting of the court comprises three judges—in criminal cases usually one Lord Justice and two High Court Judges; in civil cases the Master of the Rolls and two Lord Justices, or three Lords Justices. At any one time, three Lords Justices are normally occupied on criminal business, leaving 13 out of the total number of 16 and, of course the Master of the Rolls himself, available for civil business. The civil division can only manage to contain the workload by sitting five courts continuously, and so they are permanently one judge short. To fill the extra place, I have found it necessary to invite retired judges to sit continuously and to call upon other judges who could be spared from their normal work, either in the High Court or indeed in the Appellate Committee of your Lordships' House. But for the valuable service of these judges, we should now be faced with a very serious situation indeed. Nevertheless, it is not satisfactory for the business of the Court of Appeal to be managed indefinitely in this way; nor would it be safe to assume that it would be practical to do so. Your Lordships may think that the complement 99 of the court should at least coincide with the normal requirement of judges for it.
Although I recognise the need to make no more full-time judicial appointments than are absolutely necessary, I should be failing in my responsibility for the administration of the higher courts if I were not to take reasonable steps to ensure that appellants, both civil and criminal, have their appeals heard as soon as can conveniently be arranged. This applies particularly to the criminal division of the Court of Appeal, where the appellant may be in custody and his appeal may be successful, as from time to time they are. I do not believe that the court will be able to meet the demands which are being put upon it without at least one additional full-time appointment in the near future. I envisage that this will be made, if the order is approved, later this year.
It is unlikely that the second appointment will be necessary for the time being, but I am sure your Lordships will agree that it is sensible to have the power to make such an appointment at a time of ever-increasing business in the courts. I hope, accordingly, that your Lordships will agree to raise the maximum number of Lords Justices from 16 to 18, as proposed in the order. My Lords, I beg to move.

§ Lord RAWLINSON of EWELL
My Lords, I must confess to a feeling of nostalgia when I heard the voice of the noble and learned Lord the Lord Chancellor proposing an increase in the number of judges, since in another place and in another garb I have on many occasions, on one side of the Table or the other, been either proposing or supporting—and I support on this occasion the proposal which has been made by the noble and learned Lord the Lord Chancellor.
It is always important for Parliament to discuss the number of judges, because of the importance of the role and status of judges, and that it should require Parliamentary approval has always seemed 100 to me perfectly correct. A Lord Justice is, after all, an appointment recommended by the Prime Minister—of course on the advice of the Lord Chancellor; he is sworn of the Privy Council and he is a person who has a very heavy responsibility, because it is the Court of Appeal which broadly governs the interpretation of the law by the judges of first instance. But it should never be forgotten—and sometimes it seems to be forgotten in certain judicial quarters—that the Appellate Committee of your Lordships' House is, in fact, the superior court. Wryly I have noticed—though with some pleasure, I confess—that in your Lordships' House the Appellate Committee has had occasion to assert its authority.
But the Court of Appeal is, of course, of enormous importance and that it has increased in number so much, as the noble and learned Lord has indicated, is of great significance; though I note that the puisne judges seem to have remained far fewer in number, in proportion, than the Court of Appeal. As the noble and learned Lord has pointed out, the Court of Appeal has increased in number by some 38 per cent. in the last 10 years and that is a sizeable figure. It is, of course, necessary. I noticed that in the Daily Cause List last Friday the Court of Appeal was sitting in five Civil Divisions, and one judge was the Master of the Rolls, while another was a former Lord Justice. The noble and learned Lord has pointed out that it was necessary to provide a sufficient complement. On that occasion, there was only one Lord Justice sitting in the Criminal Division. Altogether there were 15 judges of one kind or another sitting on appellate work.
There must be provision for an effective five Civil Divisions. There must also be Lords Justices presiding over the criminal divisions, because, after all, they are presiding over appeals from puisne judges, or judges of first instance. It was the whole idea of the new format of criminal appeals that a Lord Justice should be the person who was, as it were, presiding over the court which reviewed the work of the puisne judges. But there is very little provision for illness and for other duties, even if the increase is made which the noble and learned Lord has proposed today. I suppose that it is very much a matter of the immense burden of work which is involved in the Criminal Appeal Division.
101 As the noble and learned Lord the Lord Chancellor pointed out, there has been a great increase in the number of cases coming before the courts. In 10 years, the number of trials in this country has doubled. To give some illustration, when I first began to practice in 1946 there were four judges at the Central Criminal Court. There was the Red Judge—that is, the visiting High Court judge—the Recorder, the Common Serjeant and one judge. Those four judges did the whole of the business and, as we always thought, had very ample holidays as well. Now if you go down to the Central Criminal Court there is no break, and there are 30 judges sitting there doing the work which used to be done by four. That is the scale of the change in the work done by the judges, and I suppose that it must properly be reflected in the scale of the appellate work.
But if it be the criminal side which is causing the greatest difficulty, I wonder whether we should look again at the powers of the Court of Appeal. I know that the Donavan Committee recommended—and it was approved by nearly everybody—that there should be removed from the Court of Criminal Appeal, as it was, and the Criminal Division of the Court of Appeal, as it now is, the power to increase sentence. That deprived that court of the sanction against unmeritorious appeals. What, I wonder, is the volume of the increase in criminal appeals? Is it very great, and does it involve a great deal of work?
I wonder, after several years of experience, whether we should perhaps reconsider that provision. There should never be any fear that meritorious appeals cannot, and will not, appear before the court. But the fact that the Court of Criminal Appeal had that power in criminal cases was a considerable sanction, and it would also give the Criminal Appeal Division an ability to lay down general levels of sentence. So I think that it is for consideration whether we ought to think of that again.
I want to emphasise the importance of the role of judges, and the respect and support which they are entitled to receive from Ministers as well as from all in your Lordships' House and elsewhere. Whenever any Government require impartial and skilled chairmanship, to whom do 102 they turn? They turn to the judges. Bodies of inquiry are invariably presided over by the judges, because they carry the respect and the confidence of the general public. Therefore, it was all the more reprehensible that, in comments which must have caused grave embarrassment to his colleague, the noble and learned Lord the Lord Chancellor, the Lord President of the Council, in what he may have explained as a historical lecture, criticised the judges. In any contest of public repute, the Lord President would find far greater confidence in the judges than in the politicians. I do not believe that that criticism of the Judiciary is reflected in any part of Her Majesty's Opposition, and the Judiciary is held in high regard in this country and overseas, as I personally have witnessed in many parts of the globe.
I appreciate the need to enlarge the Court of Appeal, and I believe that the noble and learned Lord is correct in so proposing. I trust that this will reduce the delays in concluding appeals while still maintaining, as I am sure it will, the high standards of skill and integrity in which the Judiciary in the United Kingdom is universally honoured. So I beg to support the noble and learned Lord the Lord Chancellor.

§ The LORD CHANCELLOR
My Lords, as the noble and learned Lord, Lord Rawlinson, has said, this is very much a nostalgic experience. When he was the shadow Attorney and I was the Attorney, and the orders were reversed, we opposed each other frequently in another place. If I may say so, the fact that this Chamber is not wholly full is not a new experience for either of us, when changes in the administration of the courts and of the law are under discussion. It is of crucial importance but, obviously, it is not of first paramount interest to Members of either House. But I am grateful for the noble and learned. Lord's support for this measure.
He has highlighted, as I have sought to do, the considerable strain that the increase in the number of criminal cases is imposing on the courts. The quantum of civil appeals does not diminish, and on top of the number of criminal appeals is the fact that there are more and longer 103 criminal trials, with consequential longer criminal appeals, which add to the burdens.
I shall not embark upon the attendant matters to which the noble and learned Lord referred. We are certainly looking at the procedures of the Court of Appeal to see whether we can effect some reduction in the time taken to complete those proceedings. The burden upon the Lords Justices has been extremely heavy. I am glad that, like myself, the noble and learned Lord has taken advantage of this occasion to pay tribute to the Lords Justices. So far as the administration of justice in the courts is concerned, I regard the work of the Court of Appeal as possibly the most arduous. I am grateful to the noble and learned Lord and to all other noble Lords for their anticipated support of this order.