§ 3.45 p.m.
§ The Lord Chancellor (Lord Hailsham of Saint Marylebone) rose to move, That the draft order laid before the House on 24th October be approved.
§ The noble and learned Lord said: My Lords, the Court of Appeal is the focal point of the English judicial system, and it is therefore vital that it should keep up with its work. The draft order to which the Motion refers relates to the ordinary judges of the Court of Appeal. The Court of Appeal, as the House will know, is manned by ex officio judges and ordinary judges, and this is laid down in Section 2 of the Supreme Court Act 1981.
§ The two ex officio judges who normally sit in the Court of Appeal are the Lord Chief Justice and the Master of the Rolls, but one or two of the others assist there from time to time. The ordinary judges of the court, known as Lords Justices of Appeal, make up its main judicial strength. There are at present 18, and that is the limit fixed by Section 2(1) of the Supreme Court Act 1981. The purpose of this draft order, as is apparent from its terms, is to increase the maximum to 23 places, although, as I shall be saying, I only intend at present to suggest that three should be filled.
§ The workload of the court has been rising substantially. The last time the maximum was increased (from 16 to 18) was in 1978, under the reign of the noble and learned Lord on the Opposition Front Bench. In that year, 1,371 civil appeals were set down. The civil appeals take up the bulk of judicial time in the Court of Appeal. Last year, 1982, the number was about 1,627. That is our best estimate, and is the figure which appears in the newly published volume of Judicial Statistics. That represents an increase of about 18 ½ per cent. over 1978. So far this year there has been a slight drop in the rate at which new work is coming in, but the substantial and continuing increase in the total workload of the civil courts suggests that the overall trend will continue to be in the upward direction.
§ The Court of Appeal has also to man its criminal division. In this division the pattern has varied since 1978. That year came in the middle of a falling trend 967 which ended in 1980, but in 1978 there were 6,099 new appeals registered; in 1980, 5,400 new appeals were entered. Since then, the workload has risen again. In 1982, 6,674 new appeals were registered—an increase of 9½ per cent. over the 1978 figure; and I am sorry to say that there has been a further strong rise this year, with 3,591 new appeals compared with 3,223 in the same period of last year, which means a further increase of 11½ per cent.
§ Moreover, the upsurge in cases coming forward to the Crown Court, which lies behind the increase in the number of appeals, shows no sign of abating. What is even more significant, as regards the need for Lords Justices, is that the proportion of cases in which leave to appeal has been granted by the single judge has been increasing. In the great majority of criminal appeals leave to appeal must be obtained first from a single judge before the case may go for hearing to the full court, and that full court consists of two judges for appeals against sentence and three judges for appeals against conviction.
§ In 1978leave to appeal was given by the single judge in only one in six cases, and in a further sixth the application for leave was renewed to the full court. Since 1978 the proportion of cases in which leave to appeal has been granted by the single judge has steadily risen, and by last year it was well over one-quarter. In addition, the number of cases in which applicants have renewed their applications to the full court has also increased. It is now slightly more than one in five of the total. These changes, taken together with the steep rise in applications, has meant that there is a greatly increased workload for judges of the Court of Appeal in the criminal division as well as in the civil division. There has also been a marked increase in the work of the Divisional Court, which now takes about half the time of a judge of the Court of Appeal.
§ Despite these substantial increases in workload on every front over a considerable period, I did not wish to seek an increase in the number of Lords Justices without being sure that the time of the existing judges was not being taken up with matters which could be dealt with by others, or was not otherwise being wasted. A working party under Lord Justice Scarman (as he then was) made certain recommendations which I brought into effect in the Supreme Court Act 1981. Leave to appeal is now required in a larger proportion of cases, especially county court appeals, and application for leave may now be heard by a single judge. Courts of two rather than three judges may be used for more classes of business than before. The House will remember that there is also a new Registrar of Civil Appeals who can deal with a variety of preliminary and incidental matters and ensure that the court's time is not taken up with cases that are not ready for hearing.
§ In addition, in April the Master of the Rolls issued a practice note requiring counsel to submit skeleton outlines of their arguments so as to save some of the time spent in oral argument. He has also announced that appeals which appear to have been lodged simply for the purpose of delay—which is not an unknown feature of this jurisdiction—will be listed early so as to defeat that purpose.968
§ All these measures have helped, and to some extent waiting times have actually been reduced. But even so, appeals which can be heard by two-judge courts must wait on an average for six to seven months, and those for hearing by three-judge courts must sometimes wait 12 to 14 months. Although some further improvement may still be possible during the coming year. I believe there is little scope for major reductions in waiting times without an increase in the judicial strength of the court. At present—and I must stress this—the court is depending heavily on the services of retired judges of the Court of Appeal and could not have achieved even the present modest successes without them. I should like to express my gratitude to the retired judges; they have helped in this way enormously, and I hope they will continue to be willing and able to serve when the occasion arises. But it is not really right that the court should have to depend on their services as a matter of routine.
§ The draft order proposes an increase of five in the permitted number of Lords Justices, from 18 to 23. As I have said, not all five places need to be filled immediately. If the order is approved, I have it in mind to recommend three additional appointments only. As I have indicated, the present workload on the courts of first instance, both civil and criminal, makes it all too likely that further appointments will be required in due course. That is why the order allows me a little room for manoeuvre. I beg to move.
§ Moved, That the draft order laid before the House on 24th October be approved.—(The Lord Chancellor.)
§ Lord Elwyn-Jones
My Lords, the House will be grateful to the noble and learned Lord for going into detail in the way he has as to the reasons for his coming to the House to ask for this substantial increase in the potential number of Lords Justices of Appeal. I respectfully agree with what he has emphasised about the importance of maintaining the smooth working of the Court of Appeal, which is crucial to the administration of justice in our country, and of coping with the increase in the work coming before it. I was concerned, if I may say so, about the evidence that the Court of Appeal was failing to cope with the volume of work coming before it, and I was grateful for the assistance of the noble and learned Lord, Lord Scarman, and other Lords Justices in initiating the steps which culminated in the legislation which the noble and learned Lord has introduced to strengthen the Court of Appeal in various ways. The suggestions and the initiative of the present Master of the Rolls are valued, and it is good to know that they are bearing fruit.
The civil work of the court continues to increase. There was a 10 per cent. increase in 1982 over the previous year, and I suspect it will be the same sort of picture in this year as well. On the criminal side, the great increase in the number of criminal appeals, sadly, reflects the great increase in the amount of crime, which has reached an explosive point. I am not making a party political point of this, which is a happy change from some of the atmosphere which prevailed earlier. The fact is that in the last three or four years there has been a serious increase in the volume of crime. It is a matter we shall be discussing and examining in the coming week.
969 Obviously, I have only got the 1982 volume of Judicial Statistics. On the criminal side there were 2,516 criminal appeals outstanding at the end of 1982. While we are glad to hear of the improvement in the speed of dealing with appeals, nevertheless, as the noble and learned Lord has indicated, a waiting period of 12 to 14 months before cases involving appeals against conviction are heard before three judges is obviously far too long and something which we cannot be happy about as a feature of the administration of justice in this country. After all, a number of those men and women waiting for their appeals to be heard will succeed in their appeals, and we have no system of remedy for the ultimately acquitted defendant. So it is important, especially when one bears in mind the appalling conditions in prisons in this country, which show very little sign of improvement. So we are touching the heart of a very serious problem in the administration of justice, and, in so far as the addition of more Lord Justices can help, we of course greatly welcome the development.
Perhaps the noble and learned Lord will allow me to widen a little the matters which we ought perhaps to be considering. I would refer to the position lower down in the court set-up; to what is happening in the county courts. There, the number of cases is leaping up. In 1981, over 2,092,000 cases were begun in the county courts. Last year, 2,300,000 cases were commenced in the county courts. I am informed, particularly through the solicitors, that the problems and backlog building up in the county courts is comparatively every bit as serious as those at the higher levels of the judicial system.
It is also suggested that the reduction in the number of civil servants concerned, for instance, in the process of levying execution—worthy as it is statistically as a figure in reducing the size of the Civil Service—is, I am told, having an adverse effect on the ability of the litigant to recover what is due to him. That is causing a great deal of anxiety.
I apologise for having ventured into that aspect and, because of the lack of notice, I do not expect the noble and learned Lord to answer. But I think it is perhaps right that we should not ignore the lower courts, which are the courts in which most of our citizens, plus the magistrates, experience the working of the administration of justice. Their reputation must obviously be maintained and therefore, in rightly looking at the top level, we should not forget the burden that falls on the lower courts.
§ 4 p.m.
§ Lord Rawlinson of Ewell
My Lords, this is an important order which will be welcomed by all those who practise in law. It will certainly be welcomed by those whose cases are coming before this court. As the noble and learned Lord pointed out, it will be of very great importance in the Criminal Division, for those who have an appeal pending, that that appeal should be heard within a reasonable time. The noble and learned Lord pointed out the consequences for a person who might have his conviction quashed and who will have possibly spent some time in prison while awaiting that process. The Court of Appeal, as described by the noble Lord the Lord Chancellor, is the focal point in the administration of justice. It is a 970 very hard-pressed court because it bears the greatest burden of all. It is the final court in the majority of cases and, if I may say so with respect to some former Lords of Appeal in Ordinary whom I see present on the Cross-Benches today, it has to do very much more work than the Judicial Committee of this House. I am not complaining in any sense, but it is the sheer volume of work which goes into the Court of Appeal which makes this order which has been introduced by the Lord Chancellor so important. In the view of the profession there has long been a need for an increase in the number of judges in the Court of Appeal.
The order will, of course, assist the present Master of the Rolls in his valiant efforts, through administrative changes, to expedite hearings. Such administrative changes are much favoured by those who practice, provided there is no diminution of public and oral argument in appeals. We must be on guard against the introduction of the American or European systems where, in so many appeals, the issues are decided on very limited public argument and mainly on the submission of written documents. The English and Scottish tradition has been the public hearing of appeals where the public and the individual litigant hear the actual case being presented and argued before the court.
Personally, I have the greatest reservations on all forms of proceedings from which the public are excluded. It is only on matters of national security that members of the public should be excluded. The presence of the public and of the press in proceedings in courts of law is an essential protection of liberty. Some members of this House and the other place are often critical of the service of the press, but we should be conscious of the great service given by the press in attending and regularly reporting the processes of the courts. It imposes a discipline upon the courts and it protects the liberty of the subject. Therefore, any appeal on paper would be a limit on that safeguard and I trust will not be introduced. The Master of the Rolls has made quite clear in the practice direction to which the noble and learned Lord the Lord Chancellor referred and has robustly asserted that there is no intention of limiting public argument in the appeal. I welcome and encourage that statement.
The second consequence of this new order—and I say this with the greatest respect—will be the avoidance of needing to use, in the Court of Appeal, former judges who are of great distinction and experience but who are beyond the statutory retirement age. Hitherto it has been unavoidable in order to keep the work of the court going. As I have said, they are former judges with great experience and skill, but Parliament, for the courts and in other fields, has decided that there should be an age limit. That is not a reflection on many or most of these distinguished judges who have so nobly helped in the work of the Court of Appeal, but it is a matter of principle and it really should not be circumvented. However, I believe that the opportunities for any Lord Chancellor to get the services of these former judges are now much reduced by the attractive offers to act as private arbitrators which are now flooding across the tables of the former judges, so they may not now be so available.
Nor do I think that the quality will be diluted by the appointment of these extra Lords Justices. In my 37 971 years in practice I can say that rarely has there been a time when the standard of the top echelon of the puisne judges has been so high. I can think of many puisne judges who are fitted by both intellect and character to be promoted to the Court of Appeal. In June, when I mentioned this in speaking on the Queen's Speech, I said that I hoped the new Parliament would afford an opportunity for energetic law reform. It is most encouraging to see signs from the noble and learned Lord the Lord Chancellor which demonstrate that he has in hand so much good work in this field and which we hope those fierce Whips will permit him to do in managing the business of the Government.
It is essential for the courts to be adequately staffed, and I am glad that the Lord Chancellor has persuaded that other hovering guardian of the public purse, the Treasury, to introduce what will prove to be perhaps more expensive but certainly a very considerable extension to this court. I trust that in appointing three he will shortly consider appointing more so that there will be more expedition in the hearing of appeals, to the very great benefit of the public in the administration of justice.
§ 4.8 p.m.
§ Lord Mishcon
My Lords, I am encouraged by the noble and learned Lord, Lord Rawlinson of Ewell, whom we are always delighted to hear, and by the way in which he roamed into various fields not directly connected with this order, to make a few observations, if I may, in furtherance of what my noble and learned friend—
§ Lord Mishcon
My Lords, may I assure the noble Lord that I always want to give way to him. I did not turn round so did not see him rise, and I apologise. If I can assist him by sitting down and letting him speak, and then speaking afterwards, I shall do so with the greatest of pleasure. The noble Lord, with his usual courtesy, remains seated, so I will continue, but I again apologise to him.
As I said, I was encouraged to emphasise on behalf of my own profession what my noble and learned friend Lord Elwyn-Jones was saying about the need to look at other courts. The noble and learned Lord the Lord Chancellor referred to the Court of Appeal, if I remember his words, as being the focal point of the English legal system. May I be allowed to say that county courts, to which my noble and learned friend referred, are possibly the focal point of the English legal system because more and more the parties who now appear before those courts do so by virtue of the substantially increased jurisdiction which those courts have.
The noble and learned Lord, Lord Rawlinson of Ewell, was trying to urge the noble and learned Lord the Lord Chancellor swiftly to increase the number of Lords Justices of Appeal from the three to the five that he would be authorised to have. On behalf of my 972 profession I think I can say that we should welcome that. But if there are monetary targets which appear here in front of the noble and the learned Lord the Lord Chancellor when he is thinking in terms of priority, I hope that he will remember—as my noble and learned friend Lord Elwyn-Jones urged—the very substantial needs of the county courts and the way in which lists there are getting absolutely packed and full, with the resultant delays in hearing cases in the county court. That is something that I am sure your Lordships will deprecate, as I know will the noble and learned Lord the Lord Chancellor.
§ Lord Wilson of Langside
My Lords, may I briefly accord a similar welcome from these Benches as has been accorded by the noble and learned Lord, Lord Rawlinson of Ewell, and the noble and learned Lord, Lord Elwyn-Jones, to this very useful measure which has been gone into with such care and detail by the noble and learned Lord the Lord Chancellor. It is almost traditional in your Lordships' House when English lawyers rise to address your Lordships on matter of Scots law to say that they do so with the greatest trepidation. That trepidation is as nothing compared with the trepidation felt by mere Scots lawyers when venturing into this area.
Unfortunately, it is a feature of almost every developed system of law that delays are apt to arise and to add to the frustration—and sometimes worse—of ordinary people who for one reason or another are involved in the courts of justice. So it is natural that everyone in your Lordships' House should welcome this contribution presented to the House today towards reducing the law's delays.
§ Lord Hale
My Lords, I agree with every word that the noble and learned Lord, Lord Rawlinson of Ewell, said. He knows a very great deal more about the matter than I do. For that reason I wondered whether I should even take the opportunity to say this. These questions in one way or another have continued to arise throughout my legal life. The Law Society wrote to me the other day to congratulate me—or felicitate with me—on having completed 60 years of service on the Rolls. My memory goes back to some very quaint legal procedures—even to verdicts being handed down with a pair of tongs.
The county court is a comparatively modern creation. It is a court for the collection of small debts. Had people thought about it to start with, they would know that you cannot collect small debts. I used to have clients who were rent collectors. They got very little for their endeavours but they kept an office on it. In days of moderate prosperity they could make a little living, but in days when unemployment began to grow no one was able to pay those simple debts. A few years ago in Oldham we had generous grocers and other food suppliers, including particularly the Co-op. Although it did not formally grant credit it would never send some poor man away without a little help when he could not pay a bill. No one minded. It was a human system based upon human needs. The same applied to rents. People were not turned out of their houses so brutally because there was always the house next door with a spare room for the victims of an eviction.
973 In all this area of small debts there is much the same principle. There is the simple difficulty: if a chap cannot pay, he cannot pay. The idea of shutting him in prison once every six weeks because he has not paid a debt is the most daft and in many ways the most cruel and exacerbating method that has ever been introduced.
The noble and learned Lord on the Woolsack has been very kind to me. Perhaps I have gone a little wide on the county court question, but I think it is a vital issue. I think we are reaching the stage where it has to be dealt with. As the noble and learned Lord knows, I have sat on at least two or three law reform committees—indeed on a dozen, I should think—and have been called upon to judge these matters. We ought to look at the bankruptcy laws. A Question has been put down on that aspect.
We had a passionate desire to grant the right of appeal. In my time it has been extended time after time. The area of appeal is extending. A couple of ships might collide in Chinese waters. They might both be Chinese owned. But whether such a case can be heard here might depend on where the registered office was. We see case after case involving complicated detail, and immensely important appeals are dealt with by the Court of Appeal which it would not have understood when I first started to practise. No one can fail to agree that the standard of the judiciary has risen incredibly. Counsel and others discuss complexities which in our day we could never have handled. We did not even have the machinery in the office to do so. But all that does not get over the matter that we are discussing.
I had hoped that the noble and learned Lord on the Woolsack would have been able to say that we could leave this for a little time, but he says that the need is really pressing. He has reduced his possible appointments from five to three. I should not feel it right to oppose proposals which he has digested and considered and which I have not.
§ 4.19 p.m.
§ The Lord Chancellor
My Lords, I know that the House wants to get on with its business: I think I should reply briefly to the very welcome speeches that I have heard. I was glad to have the support of my predecessor, the noble and learned Lord, Lord Elwyn-Jones. He is right. I do not think there has been an occasion that I can remember when the actual administration of the courts has ever been a matter of party politics. We all want to achieve efficiency and justice. We do our best to do so even when opinions sometimes differ. I think that the noble and learned Lord probably misunderstood one point in what I originally said. The 12 to 14 months' delay is the period for three judge appeals in the civil division of the Court of Appeal and not the criminal appeals. Some criminal appeals which succeed are appeals against sentence and not appeals against conviction.
I briefly say this about the reforms which I have announced reducing the number of civil servants in the county courts. The only effect of this is in the service of process and the enforcement of judgments. I could give the noble and learned Lord an exposé of the merits of the reforms, but they do not affect the 974 order which I am now asking the House to approve, because they do not affect the number of proceedings before the county court and therefore cannot, even indirectly, affect the Court of Appeal.
I was very grateful to my noble and learned friend Lord Rawlinson of Ewell. There is, I believe, no intention on the part of the noble Lord the Master of the Rolls to reduce oral speeches at all. I think that it is helpful to a court to know what the point in a case is going to be, and it reduces the actual time of hearing if the judges are allowed to know that; and his provision for skeleton arguments is, I think, devoted entirely to that.
Of course, I agree with my noble and learned friend on what he said about the necessity for a public hearing wherever possible. There are, of course, the well-known Scott v. Scott exceptions. There is also the point about the value of reporters. I cannot promise my noble and learned friend that we shall not continue to use retired judges. Some of them are of the very highest quality, and sometimes my lips water when I see that they are being taken away by really important private arbitrators at a fee vastly above that which I can offer.
I think that I can endorse what has been said about the quality of the judiciary. During my professional lifetime, which does not go back quite as far as that of the noble Lord, Lord Hale, the quality of the judiciary has improved as a whole almost out of all recognition.
I would quite endorse what was said by the noble Lord, Lord Mishcon, and what was said by the noble and learned Lord, Lord Wilson of Langside, from the Scottish point of view. When I have had the pleasure of listening to Scottish counsel in the House of Lords, I have always been immensely impressed by their quality, though their numbers are approximately those of the Wales and Chester circuit; but they manage to keep up the quality extraordinarily well, with a very high degree of learning and skill and professional standards of all kinds. Having said that, I should just like to thank all noble Lords for the generous welcome that has been given to the Motion.
My Lords, I should like to ask my noble and learned friend the Lord Chancellor about one point, for clarification, which I believe is important to the layman and which I at least find extremely puzzling. Can he give me in general his view as to why there has been such an astonishing increase in civil litigation coming before the Court of Appeal since, say, the war?
§ The Lord Chancellor
My Lords, one obvious point is that the population has very largely increased in numbers. Another factor which one must bear in mind is the number of personal injuries; there has been an increase in the number of accidents. There is a third point, which is very difficult to formulate, but if there is arise or a fall in prices, one will find that litigation in contract increases enormously. If prices are steady, most of the sale of goods cases tend to disappear, but if there is a sharp change in prices in either direction, the number of civil claims increases.
§ The Lord Chancellor
My Lords, I am greatly obliged to the noble and learned Lord. Of course, I ought to have remembered that point.
§ On Question, Motion agreed to.