HL Deb 02 March 1981 vol 417 cc1218-27

2.59 p.m.

The Lord Chancellor (Lord Hailsham of Saint Marylebone)

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF LISTOWEL in the Chair.]

Clause 1 [The Supreme Court]:

On Question, Whether Clause 1 shall stand part of the Bill?

Lord Elwyn-Jones

I observe that in Clause 1 there is a change in the law—whether it has a more formal significance, I know not—in that the noble and learned Lord the Lord Chancellor shall be President of the Supreme Court. That is a role that has never, as I understand it, been known before in our administration of justice and I take it this is not meant to be more than a recognition of the fact that the Lord Chancellor is the head of the judiciary. I apprehend that it does not impose any further obligations or duties upon him. That would be intolerable because he has more than enough to do already, if I may say so, from my experience of that office. So I take it this must be a formal recognition of the fact that the Lord Chancellor is the head of the judiciary and therefore appropriately described and given the status and office of "President of the Supreme Court".

The Lord Chancellor

I think the noble and learned Lord is exactly right in what he said. It certainly does not impose any new duties upon an already overburdened man. The Lord Chancellor, as the noble and learned Lord is aware, is president of the Court of Appeal, which is the higher of the two divisions of the Supreme Court, and also he is technically the head of the Chancery Division. The Vice-Chancellor's position has been moved up very considerably as a result of this Bill and I think it was thought by the draftsmen that this recognised the status quo rather than altered it.

Lord Elwyn-Jones

I am quite happy with the change, but I thought it was worth noting as we go along.

Clause 1 agreed to.

Clauses 2 and 3 agreed to.

Clause 4 [The High Court]:

On Question, Whether Clause 4 shall stand part of the Bill?

3.3 p.m.

The Lord Chancellor

In case I should be accused of deviousness, I think I ought to remind your Lordships that during this week, and probably tomorrow, I shall be moving to increase the number of High Court judges which are stated in the Bill to be 74. That figure is arrived at by taking the present figure of 75 and deducting one because of the new position of the Vice-Chancellor. It is quite clear to me that this number is inadequate owing to various factors I shall come to when I move the necessary resolution. I think I should give notice that when the Bill reaches Report stage there will be a Government amendment to increase the total number to 80. I think it is only fair to make these points while the Bill is in this stage, lest I should be accused of a rather devious tactic.

Lord Elwyn-Jones

We certainly would not accuse the noble and learned Lord of that. Perhaps therefore we could consider at Report stage the size of the judiciary because it does give rise, as I well know and as the Committee knows, to very serious problems of dilution and of the burden imposed on the judges. However, so that we may proceed with the Committee stage I will reserve my observations until Report stage.

Clause 4 agreed to.

Clauses 5 to 9 agreed to.

Clause 10 [Appointment of judges of Supreme Court]:

3.5 p.m.

Lord Mishcon moved Amendment No. 1: Page 8, line 18, at end insert (" or is a circuit judge ").

The noble Lord said: The Committee will realise that this is an amendment in order to add circuit judges to those who could be appointed as puisne judges, apart from what now stands in the Bill as being the qualification of a barrister of ten years' standing. This may be an even more pertinent amendment in view of the announcement that the noble and learned Lord the Lord Chancellor has just made, that in the course of our dealings with this Bill we shall find the recommendation that the number of puisne judges be increased from 74 to 80, showing the burden of work that now falls on the High Court and on judges of first instance.

The Committee might wonder why it was necessary, if you can appoint a barrister of ten year's standing, to ask for circuit judges to be added. I wish at once to be absolutely clear in my explanation to the Committee: it is because circuit judges can be either barristers or solicitors. Therefore this amendment would enable a circuit judge who has been appointed, who is a solicitor and who is looked upon, by virtue of his experience as a circuit judge and by reason of the career he has had as a circuit judge, as being suitable for elevation to the High Court bench.

It may be of interest to note that of the 334 circuit judges, as I believe there are at the moment, 19 are solicitors, and since the Courts Act 1971 six circuit judges have been elevated to the High Court bench. Therefore, if I may say so, this is a very understandable corps of people from which High Court judges may appropriately be appointed.

The Committee may be interested to know what a solicitor has to do by way of qualification and experience before he can become a circuit judge. First of all, he has to be a recorder, and a recorder must be either a barrister or solicitor of at least ten years' standing. Then, after having been a recorder for three years and having shown by his conduct that he is suitable to be appointed as a circuit judge, a solicitor recorder is eligible for appointment as a circuit judge. I hope that the Committee and the noble and learned Lord the Lord Chancellor would feel that it would be singularly wrong, having gone through that judicial experience and quite apart from the practice of being a solicitor, which so much brings one into contact with members of the public and their problems, to exclude from those who can be appointed as puisne judges, those solicitors who have been appointed recorders, and then circuit judges, and who have shown themselves by their merit to be capable of being appointed to the High Court bench. I beg to move.

The Lord Chancellor

I see around me on the Benches opposite and on the Cross-Benches many persons who are in many ways better qualified than I to speak, but I think it might be appropriate if I disclosed my own position before they seek to do so. We had the Second Reading of this Bill before Christmas and this clause, as now drafted, is part of the Bill, and the Bill is a pure matter of consolidation. Rather late last week the noble Lord, Lord Mishcon, put down this amendment and I think it does rather more than his brief introduction might lead us to suppose, since it is a breach of the principle upon which High Court judges are selected. Incidentally, I think, without consultation with the other branch of the profession, it is very much calculated to create ill-feeling between the two branches of the profession, upon whose friendly co-operation the whole smooth working of our system of justice ultimately depends.

As the noble Lord has mentioned, the practising legal profession in this country is divided into two branches: that is a feature of our jurisprudence which has been the subject of criticism from time to time. It is one which I heartily endorse. I remember that when we were discussing the Courts Bill in 1971, the noble and learned Lord, Lord Gardiner, said that he passionately believed in it. It has since been deeply investigated by the Benson Commission, and endorsed before the Benson Commission by no less a person than Warren Burger, the Chief Justice of the United States of America, who himself has practised in a fused profession, and the Benson Commission came down in favour of the status quo.

It is necessary to explain in a few words the basis upon which High Court judges are selected from those who have practised for 10 years in the High Court. The barrister forgoes a great number of things which are open to a lawyer in other countries which operate under a fused profession. He is not allowed to solicit work directly from the public. He receives his instructions directly from the solicitors' profession, rather on the basis of horses for courses; part of the expertise of the solicitor is to know the kind of case which a particular barrister is best qualified to conduct.

The barrister does no practical conveyancing. In practice, he does not draw the ordinary will. He does not interview witnesses, except his client and experts. He employs a minimal staff, since much of his time is spent in the library, in court or awaiting the calling of his case. His overheads are thus kept to a minimum. He is essentially an advocate, a specialist and an adviser. His value as a separate branch of the profession was endorsed as being in the interests of the public.

In contrast to the barrister, the solicitor is based in his office. He employs numerous staff—qualified and unqualified—legal executives, partners, typists, clerks, costing clerks and so on. His overheads are extremely heavy, and sometimes even enormous, and unless he is office-based he cannot meet them. Much of his income is drawn from conveyancing, drawing wills or conducting business on behalf of his clients. In contentious business, he normally employs counsel when he does not send junior partners to the county court or the magistrates' court, where he has a joint right of audience. In return for his abstention from direct contact with the public, the barrister retains a unique right of audience in the High Court and a joint right of audience in the county court; and in some of the more remote Crown Courts. In practice, he shares this, not with the senior partners of a firm of solicitors, but usually with the junior ranks of it.

In 1971, when I was introducing the Courts Bill in my previous term of office, the eligibility of both branches to the Crown Court bench was actively and controversially canvassed. As a result of a compromise, which was arrived at, largely, I think I may say, due to my personal efforts, the Courts Bill was passed in its present form. At that stage, I made an estimate that very few solicitors were expected to aspire to judicial status in the Crown Court. I expected a few and I expected them to be good in quality, and in each respect my anticipations were then justified. Relatively few solicitors have applied to be made recorders, and relatively few of these graduated to circuit court status. Those that did were extremely good.

Their title to be considered depended upon the fact that, particularly in country areas not served by a large local Bar, younger solicitors had experience of advocacy in the magistrates' courts, the county courts and, in a very few cases, the Crown Courts. The experiment has been a success although, in the main, solicitors approach this goal mainly after their career has passed its zenith. Elevation to the bench depends in this country on an experience of advocacy. This is in contrast to the civil law countries, where it is a separate branch of the legal profession and judges are recruited, as it were, as civil servants, from law schools direct, and gradually develop their skills as judges by experience from a lower court to a higher court.

When I decided to make the experiment in 1971, I came under a good deal of criticism in this House and from the Bar. For instance, I well remember that the noble and learned Lord, Lord Gardiner—hardly a conservative figure, in any sense of the word, said that he was wearing the mantle of Cassandra and claimed that no good would come of the compromise which I had then allowed. He was a prophet of doom. He thought that I was selling the pass. He realised that matters of principle were then at stake, but I thought that the fact of a joint right of audience in the county courts justified the experiment and, as I have said, in the event, the experiment proved a success—a success in quality and a modest success in quantity. As the noble Lord, Lord Mishcon, has said, I think that 19 judges out of a total of something like 350—and not the figure he gave—circuit judges have, in fact, graduated to the Crown Court—

Lord Mishcon

I wonder whether the noble and learned Lord would allow me to intervene, only to my own detriment, but I must do it in the cause of truth. My understanding is that only six circuit judges have been elevated, and not 19. I thought it only right, although it goes against me, to point that out.

The Lord Chancellor

I am much obliged to the noble Lord. I am not quite sure that he is not understating his case, but I will leave it at that for the moment. At any rate, as he rightly says, my point will become a stronger one if he is exactly correct. There never was any question—and I do not think there should be any question today—of putting the divide between the circuit judge and the High Court judge where the noble Lord, Lord Mishcon, puts it. Practice in court is the test in this country of selection to the bench. Selection to the High Court bench depends upon practice in the High Court and that is confined to barristers.

The noble and learned Lord, Lord Gardiner, said, on the last occasion when this subject was ventilated, that he could not imagine the purpose of being a barrister if he was not given an exclusive right of audience in the High Court. I think that he then overstated his case. I became a barrister largely because I do not like answering letters, I cannot keep accounts and I do not like looking after other people's money. But, at any rate, that is what the noble and learned Lord, Lord Gardiner, said. There is, of course, a perfectly good way in which a solicitor can become a High Court judge, and many have done so in the past. I see on the Cross-Benches my noble and learned friend Lord Widgery, who became Lord Chief Justice, no less, having begun as a solicitor. I myself had a pupil who was called to the Bar, subsequently became senior partner in a firm of solicitors and might easily have become president of the Law Society, if he had not become a registrar of the High Court before he could do so.

So that the royal road of promotion to the High Court bench for a solicitor is to practise in the High Court, which he can do perfectly easily by transferring to the Bar, and I think that that is the correct way. I think that the present situation is the more satisfactory one; namely, that 10 years' practice in the High Court should be the test of who becomes a High Court judge. It is no kind of criticism of either branch of the profession that each has its own speciality, so long as, as is now the case, there is a relatively easy road from one branch to the other if you feel that you want to go the other way.

For those reasons, I do not personally feel able to accept the amendment of the noble Lord, Lord Mishcon. It was proposed as persuasively as he always proposes everything, and he has, very fairly, rather diminished the strength of his own case—I think, possibly, unfairly to himself—by showing what a very rare occasion it is for a solicitor to become a circuit judge, and how many hoops he must go through before he does so. The net result of course is that the chances of his being one of those who move to the High Court bench would be very small because of the age at which he would have to be before becoming qualified. I think in practice the change would be minimal but I think in principle it breaks an important principle.

Lord Mishcon

Before the noble and learned Lord sits down, I think, with great respect and most unusually for him, he has become somewhat confused with his figures. What I said was that six circuit judges had been appointed to the High Court bench and that there were 19 solicitors who were circuit judges. I think the noble and learned Lord, quite unusually for him but possibly because of his poor accountancy which he frankly confessed, has got the figures rather muddled up.

The Lord Chancellor

I do not think I have. I may have indulged in a slip of the tongue but my understanding is that 19 solicitors have become circuit judges and that six circuit judges, though none of them a solicitor, have become High Court judges. If I said anything different I may have been guilty of a slip of the tongue but I was not guilty of a slip of the head.

Lord Foot

In view of the attitude which the noble and learned Lord has taken, it would be clearly foolish to try to pursue the matter any further today, but may I comment upon one thing which fell from his lips. He said at the very beginning about the amendment proposed by the noble Lord, Lord Mishcon, that he thought it would introduce a new and unhappy ill-feeling between the two professions. I wonder whether the noble and learned Lord would consider this: Is it not rather undesirable that, as matters stand, circuit judges in this country should be divided into two categories, first-class circuit judges and second-class circuit judges, the first-class circuit judges being those who may at some time be elevated to the High Court bench while the second-class solicitor circuit judges are for ever debarred from ascending to that high level? I should have thought that that was a state of affairs which might be calculated to cause some ill-feeling between the professions.

My only other observation is that the noble and learned Lord was at pains to point out that under our divided professional system, barristers in this country are subject to limitations upon what they can do. As I understood what the noble and learned Lord said, on that account they ought to have an exclusive prerogative to sit upon the High Court bench. I understand the point of that argument, but is it really right that we should decide this issue upon what the rights of barristers should be rather than upon the basis of what produces the best judges? There are many cases, particularly in America where I understand they have the fused system, and throughout Western Europe where people with no legal qualifications have turned out to be some of the best judges in the superior courts—as, for example, in the Supreme Court of the United States.

Lord Janner

I should like to support the amendment. When the noble and learned Lord the Lord Chancellor speaks I am nearly always entirely in agreement with him, but on this occasion I hope he will take notice of the investigation of this matter by the Law Society. I do not know whether the noble and learned Lord has had an opportunity to discuss the matter with the Law Society, who have gone very carefully into its pros and cons. As a long-practising solicitor, let me say that many solicitors—I am not going to say all of us—have an opportunity to form judgments, an opportunity which no barrister has except when he may try to get the points which are being raised. But behind those points there are human actions and reactions which a solicitor usually obtains and which cannot be penetrated, in my view, other than by those who practise the solicitors' branch of the profession.

As the noble Lord, Lord Foot, has already said, this is a matter which has come up again, and the manner in which it has been presented by the noble Lord, Lord Mishcon, is one which cannot be argued against convincingly. For many years the question has been raised of how far the two branches should utilise each other's services. This re-opens a point which has been proved by the appointments which have already been made to the judiciary: that the solicitors' branch is quite capable of and, I think, is extremely helpful in, forming judicial decisions. In these circumstances, I hope that the noble and learned Lord and his colleagues will reconsider their decision and take further advice from the professions.

Lord Diplock

Underlying this apparently simple amendment are matters which are fundamental to the structure of the legal profession and to the career structure of its two branches. On the face of it, this is a very innocuous suggestion. What harm can be done by enlarging the catchment area from which the Lord Chancellor can select judges of the High Court? He need only select those whom he thinks are worthy of the office and would fill it well. There is equally a respectable case for asking: Why should not the Lord Chancellor include in that catchment area, at any rate for appellate courts, professors of the law, of whom we have at least two excellent examples in this House? Indeed, if one looks across the Atlantic Ocean to Canada, the Chief Justice of the Supreme Court of Canada today is an admirable example of how well a professor of the law can occupy a judicial office.

But we ought not to debate this question in isolation from questions which are fundamental to whether or not we in this country should continue to work with a divided profession and to what extent rights of audience in lower courts or the High Court should be extended to the solicitors' branch. These are matters which have been the subject of profound debate and study over the last three years by the commission headed by the noble Lord, Lord Benson. After hearing much evidence, both from this country and from abroad, that commission came down ultimately against fusing the two branches of the profession and against extending the rights of audience of solicitors into the High Court.

No doubt this was a disappointment for many because perfectly legitimate views in favour of one side or the other can be held. But let me say this in answer to the noble Lord, Lord Foot: of course it is essential to our legal system that we should produce the best judges as well as the most competent advocates and solicitors, but wrapped up in the structure of the profession, the career structure of each side, is the production of judges, and the view which at any rate I hold at the moment is that the present system works the best.

I am not generally attracted by what I may call the "thin end of the wedge" argument in opposition to a proposal for a change, but it gains cogency when the subject matter is the administration of the law, because the way the common law has developed over the centuries has been step by step, moving from precedent to precedent. If we can do this, then there is a little more that we can do. The argument for this amendment shows an example of how that process is being made to operate. In 1971 solicitors became eligible to become Crown Court judges. In 1981, they having proved their value there, what harm could there be in making them eligible to be High Court judges? The next step, if solicitors can be circuit judges and High Court judges, surely they are qualified to have arguments addressed to them also by solicitors? If solicitors have been admitted to mount two steps up the judicial ladder, why not a third?

As the son of a solicitor, from a family whose several generations of forebears were solicitors and as one who, though a member of the Bar for many years, has ceased to be one for more than 25 years, I hope that I have not any trade union prejudices (if I may so describe them) on either side, but I urge your Lordships that it is an inappropriate occasion to give a hasty answer to this basic question. It needs much more thought, much deeper consideration of its implications, than is possible or suitable this after-noon, and I hope the noble Lord, Lord Mishcon, will not force us to a Division. I do not want to go on record as rejecting the notion out of hand, but it requires much more time, much deeper consideration than we have given or can hope to give it and if it were forced to a Division, I should find myself, very reluctantly but quite definitely, in the Not-Content Lobby.

3.32 p.m.

Lord Roskill

My noble and learned friend Lord Diplock has declared that he is the son of a solicitor; perhaps I should begin by declaring an interest as one who is the father of a solicitor and who, for perhaps half a dozen years or more, has been a member of that branch of the profession which the noble Lord, Lord Mishcon, has adorned for so long. That interest being already declared, none the less I am not persuaded that the amendment is one which your Lordships' House should accept.

I venture to say that for this reason. There is only one test by which the validity of this amendment should be judged. It must not under any circumstance be judged by any question of a closed shop or trade union principles. There is only one test, and that is: What will enable the Lord Chancellor of the day to select the best available judges for the High Court? As it is some 10 years or more since I ceased to be a judge of the High Court, I may perhaps be allowed to say that I do not believe at the present time there has ever been a period in which the quality of the High Court bench has been higher. My noble and learned friend the Lord Chancellor and the noble and learned Lord, Lord Elwyn-Jones, who covered the last 10 years between them have, as I am sure they would be the first to accept, been doubly fortunate not only in their choice but in the willingness of those who, very often at considerable sacrifice, have accepted the offices which have been offered to them. There has never been a period during which the younger part of the Queen's Bench Division, the Chancery Division or the Family Division has been stronger, more intellectually able or more utterly professional and dedicated than it is at the present time. At this moment, to seek to recruit, however deserving and able other candidates may be, is not the right moment, as my noble and learned friend Lord Diplock has said.

But there is another reason for this conclusion, and it is this: I do not believe that any of us who have sat as judges of the High Court would ever have wished to have sat and held the honour of that office unless previously we had had not merely some, but some very considerable, experience of advocacy in that court over a period of years. It is, of course, absolutely true that solicitors have the right of audience in the county court, to a limited extent in the Crown Court now, as a result of the 1971 Act and the matter to which my noble and learned friend the Lord Chancellor referred, and in the magistrates' courts. I happen to be very proud of still being a lay justice and from time to time I sit in the magistrates' court. There one hears quite admirable advocacy, but there is all the difference in the world between being an advocate in a magistrates' court or a county court and being an advocate in the High Court, with all the complications which are involved. I do not believe that anybody should he invited to preside in the High Court in civil jurisdiction unless that person has had not merely some, but very considerable, experience of advocacy in that court.

Some years ago, I had the privilege of being president of the Senate of the four Inns of Court, and during that period, like my noble and learned friend Lord Scarman, who succeeded me, we had many disappointments but we had some successes. One of the successes that we both had was easing the method of transfer between the two branches of the profession—from the Bar to solicitors and from solicitors to the Bar. As a result it is far easier now to move from one branch to the other than it was 10 years ago.

My noble and learned friend the Lord Chancellor mentioned the career—and I hope I may be forgiven for referring to it—of my noble and learned friend Lord Widgery. That is perhaps a classic of its type. A solicitor—I hope I have my dates right—until he was 35, interposing a long and distinguished and gallant career as a soldier, and then a meteoric career at the Bar, through Queen's Counsel, to the High Court bench and the Court of Appeal and then to Lord Chief Justice.

At the present time, there are a number of others on the High Court bench (I am not sure whether there is anyone now in the Court of Appeal) who started as solicitors and have reached their present position by that route. They have thereby gained the experience, which I venture to suggest would be lacking in someone who went straight from the county court bench to the High Court bench. That has always been the route and that should remain the route today. By that route, the bench has gained enormously in the last few years, and by that route I am sure it will continue to gain if those solicitors who seek high judicial office pursue that which is far easier for them to pursue than it was when my noble and learned friend Lord Widgery and the noble and learned Lord the Lord Chancellor and I all started at the Bar.

The Lord Chancellor

I do not know whether it would be convenient to let the Committee know that my noble friend the Foreign Secretary is ready with a Statement which he is about to repeat. Would it be in order, therefore, to move that the House do now resume?

Moved accordingly, and, on Question, Motion agreed to.

House resumed.