Judicial Sittings: Precedence (Hansard, 27 June 1984)

§ The Lord Chancellor (Lord Hailsham of Saint Marylebone)
My Lords, with your Lordships' permission, I wish to make a Statement about certain 915 alterations in the arrangements to be followed at sittings for judicial business. As your Lordships know, the practice is that at sittings in the House itself, if present, the Lord Chancellor presides on the Woolsack. If he is not present, precedence is governed by a Royal Commission issued on 22nd May 1969. That Commission, replaced one issued by Queen Victoria in February 1900, and provides that in the absence of the Lord Chancellor one of the Lords of Appeal in Ordinary is to preside over the hearing of appeals.
Before it was changed in 1969, the custom was that in the absence of either the Lord Chancellor or an ex-Lord Chancellor, the senior Lord of Appeal in Ordinary would sit Speaker, seniority being based on the seniority in the peerage, so that a Lord of Appeal in Ordinary holding a higher rank in the peerage would take precedence over one holding a lower rank in the peerage.
On 22nd May 1969 my predecessor the noble and learned Lord, Lord Gardiner, introduced two changes which, in a Statement, he announced to the House that day. He said that the heavily increased burden of work on the office of Lord Chancellor had drastically restricted the opportunities for serving Lord Chancellors to sit judicially and to gain judicial experience. He therefore thought it wrong that ex-Lord Chancellors should continue to be obliged to sit Speaker when the serving Lord Chancellor was not present, since they were likely to be less qualified by experience than serving Law Lords. He therefore announced his decision that, in the absence of the Lord Chancellor the senior Lord of Appeal in Ordinary should sit Speaker. The new Royal Commission then issued had the effect of removing the former precedence given to ex-Lord Chancellors. The other change made by the noble and learned Lord, Lord Gardiner, was that the seniority of a Lord of Appeal in Ordinary for the purpose of presiding at judicial sittings should he reckoned from the date of his first appointment as such and without regard to his rank in the peerage.
Since 1969 this has continued to be the rule. Accordingly. if present, the Lord Chancellor presides and in his absence the Woolsack is taken by the senior Lord of Appeal present, seniority being reckoned from the date of first appointment.
In due course an amendment was made to Standing Orders to ensure that precedence should be the same at sittings of the Appellate and Appeal Committees as in the House itself. Standing Order 82, which is now the relevant order, provides in paragraph (4) that, if present, the Lord Chancellor, or in his absence the senior Lord of Appeal in Ordinary, is to take the chair. Paragraph (5) provides that for this purpose seniority is to be determined by reference to the date of first appointment to the office of Lord of Appeal in Ordinary, without regard to rank in the peerage.
I believe that there has been general agreement that the changes brought about by my noble and learned predecessor were a considerable improvement. Nevertheless, the position is still not ideal, in that the duty of presiding is still governed by the order in the appointment of the Lords of Appeal in Ordinary.
916 The matter has now come to a head. My noble and learned friend Lord Diplock recently told me that he had decided that the time had come for him to cease presiding as the senior Lord of Appeal. But I am happy to say that, assuming that his health permits him to do so, he still wishes to continue sitting as an ordinary Lord of Appeal. He has therefore authorised me to tell your Lordships that he intends this change to take effect when the House rises for the Summer Recess.
Lord Diplock's decision has made it necessary for me to review the current arrangements. This has persuaded me that the time has now come to bring the arrangements in the House and in the Appeal and Appellate Committees into line with what is now the normal practice in other parts of the judicial system.
I have therefore advised Her Majesty that it would be appropriate for her in future to appoint the senior and second senior Law Lords who, between them, normally preside over two sittings of Committees, or of the House and the Judicial Committee of the Privy Council. Her Majesty has been graciously pleased to accept this advice. She has given effect to it by the issue today of a new Royal Commission to replace that of 22nd May 1969. This commission provides that, in the absence of the Lord Chancellor, the noble and learned Lord, Lord Diplock, or the noble and learned Lord, Lord Fraser of Tullybelton, in that order, is to preside. In the absence of either or both of them, precedence among the Lords of Appeal in Ordinary will thereafter continue to be governed, as before, by the date of first appointment without regard to rank in the peerage.
This will continue to be the position until the Summer Recess. It is right to inform your Lordships that, when the noble and learned Lord then gives up his position as the senior Lord of Appeal in Ordinary, my present intention is to advise Her Majesty that he should be succeeded by the noble and learned Lord, Lord Fraser, who is next in turn under the present arrangements, and that he in turn should be succeeded as the second senior by my noble and learned friend Lord Scarman.
This of course is confined to the position regarding judicial sittings in the House itself. In my view it follows that the position should be the same in sittings of the Appellate and the Appeal Committees, and for this purpose I intend now to place on the Order Paper an amendment to Standing Order 82 to achieve this end.
If I may, I would like to conclude by adding a word about the position in the Judicial Committee of the Privy Council. Since 1969 precedence there has followed the same rules as in your Lordships' House. My right honourable friend the Lord President of the Council has authorised me to say that he agrees that the time has now come for a corresponding change in the Judicial Committee of the Privy Council, and that he considers that from now on similar arrangements should be adopted there to those which I have described.
I feel that I should not let this occasion pass without a warm tribute to the contribution made to the work of this House by my noble and learned friend Lord Diplock and his predecessor as senior Law Lord, my noble and learned friend Lord Wilberforce. I have 917 known both since undergraduate days. I would like to say that it is quite impossible to exaggerate the contribution that each has made to the jurisprudence of the United Kingdom and, through the Privy Council, to that of the Commonwealth.

§ Lord Elwyn-Jones
My Lords, the House will be grateful to the noble and learned Lord for making this important Statement and lifting perhaps the veil over what goes on in the esoteric upper circles of the judiciary. For my own part, I would like to express my full agreement with the decisions that have been made and the decision of the noble and learned Lord the Lord Chancellor as to the future.
I should like to pay my tribute also to the noble and learned Lords, Lord Diplock and Lord Wilberforce, whose contribution to the law in our own country, in the Commonwealth and internationally has been outstanding. They are two among the greatest judges that our country has produced. May I also be permitted—you cannot stop me, my Lords—from expressing my congratulations to the noble and learned Lord, Lord Scarman, who has already made a distinguished mark upon the judiciary and, if I may say so, upon the proceedings of this House.

§ Lord Wigoder
My Lords, I would not want to make any comment on the bulk of the Statement made by the noble and learned Lord on the Woolsack. I assume that it is made clearly with the full approval of the Law Lords.
In relation to the last paragraph of the Statement, I should like to add only one comment as someone who has occupied the position, which I suspect has never been occupied by the noble and learned Lord on the Woolsack, of appearing before the noble and learned Lords, Lord Wilberforce and Lord Diplock. However formidable that was in prospect, in practice it was invariably stimulating and encouraging. I know that the Bar of England and Wales would want to take this opportunity of saying how very much they wish to support the tribute paid by the noble and learned Lord to those two distinguished Law Lords for the very, very great contribution that they have made to the law of England.

§ The Lord Chancellor
My Lords, I would like to thank both the noble and learned Lord and the noble Lord for supporting me. Of course, I consulted the Law Lords; and I have appeared before both of my noble and learned friends, and I can endorse what the noble Lord, Lord Wigoder, has said.

§ Lord Diplock
My Lords, while associating myself with the comments which have been so kindly made about the noble and learned Lord, Lord Wilberforce, and dissociating myself from those which have been made about me, I hope that it will not be thought to be out of place if, as the longest serving, by many years, of the current Law Lords, I were to express my full support for the changes which my noble and learned friend upon the Woolsack proposes to make with regard to the office of presiding over the Appellate 918 Committee and the Judicial Committee of the Privy Council.
Twenty-three years of sitting in appellate courts, both as a member and during the last nine years habitually as presider, have taught me that the task of presiding over a plurality of judges in such a way as to promote an efficient and expeditious way of dealing with appeals is not the same as producing judgments which clarify and develop the law. The tasks call for different qualities. They may be combined in the same judge, but also they may not. To preside is a more taxing task, and increasing age may well render a judge less fit to undertake it, though still leave unimpaired his ability to produce judgments which clarify and develop the law.
For efficient administration of justice in the highest court in the United Kingdom seniority ought not to be the sole criterion to preside. No reflection is intended on any appellate judge that he should sit in a court presided over by one appointed later than himself. I desire to set an example, and as a consequence I have told the noble and learned Lord the Lord Chancellor, as he has informed us, that I wish to retire as presiding Law Lord at the end of July this year, much as I still enjoy the task of presiding. However, if my health permits, I would wish to continue to sit as a non-presiding Law Lord, at any rate for a few months or so, until the fatal, but important, date when the next rise in our salary will be due!