HL Deb 17 July 1985 vol 466 cc745-51

3.10 p.m.

The Lord Advocate (Lord Cameron of Lochbroom) rose to move, That the draft order laid before the House on 1st July be approved. [28th Report from the Joint Committee.]

The noble and learned Lord said: I rise to move that the Motion in my name on the Order Paper, the Maximum Number of Judges (Scotland) Order 1985, which was laid before your Lordships on 1st July this year, be approved.

This order relates solely to Scotland and is made under the provisions of Section 1 of the Administration of Justice Act 1968. That Act fixed the maximum number of judges for the Court of Session at 19, but it provided that this number could be increased by Order in Council subject to prior approval by resolution of each House of Parliament. The maximum has been increased only twice since 1968—first in 1972 to 20 and then again in 1977 to 22.

The purpose of my Motion is to seek the approval of this House for a further increase of one. The Motion is prompted by the fact that it is now clear that the existing judicial resources of the supreme courts are not sufficient to cope with the continuing increase in work coming before those courts. Nowhere is this more manifest than in the fact that in the Court of Session there is now, on average, a delay of just over a year between the fixing and the hearing of appeals, jury trials and defended non-consistorial proofs. I am sure that noble Lords will share my concern and that of the Lord President of the Court of Session at this state of affairs which, in many cases, is productive of anxiety and indeed hardship for litigants.

Not only has the number of actions brought before the court increased but the complexity of many of these actions, and thus the time taken to deal with them, has also become greater. Noble Lords will have heard of the fluoride case which I believe was cited in legislation already considered by your Lordships' House this Session and which occupied a single judge, on and off the Bench, for over a year. That is by no means unique in that proofs in other defended actions have recently taken a considerable length of time by virtue of their complexity.

It is the burden of criminal work, however, which is making the greatest demands upon judicial time; the more so given the peremptory nature of such work. That of course can lead to consequential disruption for civil business since each judge of the Court of Session is also a Lord Commissioner of Justiciary. On average there are six judges committed to criminal trial courts each week, either in Edinburgh or on circuit elsewhere in Scotland. A further three judges are required to sit in the Criminal Appeal Court for at least two and often three weeks each month.

The increase in criminal business is perhaps best illustrated by considering the number of judicial days spent exclusively on such work. In 1972, for example, 478 days were so taken up. By 1977 this had risen to 700. I take those two years as being the years in which previous orders have come before your Lordships' House. In 1984, however, the number of days required to deal with criminal business was 1,205—that is, some two-and-a-half times the 1972 figure. It is expected that the figure for 1985 will be higher still. Added to this considerable commitment on the judges' time is of course the time taken by the specialised statutory courts and the employment appeal tribunal. Furthermore, one judge is fully engaged as chairman of the Scottish Law Commission. The net result of such substantial calls on existing judge time is now being seen in the current delays in the supreme civil court.

Let me assure your Lordships that this Motion is not made as a first remedy. The Lord President of the Court of Session and his judicial colleagues have done their utmost to contain the situation. For some time the Inner House, the Appellate Court, has sat with only a bare quorum of three judges instead of the prescribed four. Proof rolls have been overloaded on the assumption that some measure of agreement will be reached by parties in certain of the cases appearing on the rolls. Equally, the criminal appeal rolls have also been overloaded to ensure that the criminal appeal business which has now dramatically increased is dealt with as quickly as possible and to take account of the abandonment of appeals which arise at very late stages. In addition, the Lord President has instituted a number of internal reviews to consider ways of eliminating our archaic and outdated practices and procedures and how the introduction of new technology might facilitate the disposal of business.

By far the most obvious attempt to reduce the burden on the Court of Session, however, has been to give the sheriff courts jurisdiction in actions concluding for divorce. Since May of last year, when the concurrent jurisdiction became operative, there has been a movement in favour of the sheriff courts. This movement has been gradual, and of course most actions commenced in the Court of Session before May 1984 are taking some time to work through. As the volume of divorce work falls, so more and more judicial time will be released. It is expected, however, that a number of divorce actions will continue to be raised in the Court of Session.

While each of these measures will produce some savings in judicial time it has been agreed with the Lord President that a further urgent study should be conducted into ways of maximising the use of judicial time. To facilitate an early report, the review body which is being set up with the Lord President's agreement will be a compact group consisting of a judge, as chairman, along with representatives of the Scottish courts administration and of the supreme courts. The review body will be authorised to enlist a contribution from persons with management services skills if such a contribution should be regarded as necessary and can be provided without putting the need for expedition at risk. Its remit is to investigate means by which judicial time in the superior courts may be organised more effectively in order to secure earlier disposal of cases sent to the appropriate rolls of the Court of Session for proof, debate and appellate court hearings; and to report with recommendations.

In the longer term, it has also been decided that there would be an advantage in conducting some research into the escalating number of appeals now coming before the Criminal Appeal Court. Between 1980 and 1983 the numberof summary appeals more than doubled, as did the number of abandoned appeals, while the percentage of successful appeals was halved. The constantly increasing number of appeals is creating a material burden on each of the Scottish criminal courts.

There is of course no shorthand record in summary proceedings, and to enable the appeal court to consider an appeal a stated case has to be prepared by the sheriff or justice and time allowed for the defence to comment and for adjustments to be made in relation to the stated case. These procedures are based on the recommendations of the Thomson Committee and we think it right that there should now be research into these areas.

I have gone into the reasons underlying the need for an immediate increase in the judicial complement of the Court of Session in some depth, and some noble Lords may be wondering why it is that I am not seeking a greater increase. The size of the increase was carefully considered and it was concluded that, against the savings in judicial time which it is hoped might flow from the initiative to which I have already referred, only one additional judge should be requested at this time; not least because it is incumbent upon the Government to ensure that the maximum number of judges should be consistent with the amount of work which the surpeme courts are required to undertake. Should the expected increase in criminal business outstrip the savings secured elsewhere it may be necessary to seek a further increase at some future date.

For all the reasons I have set out, I now beg to move.

Moved, That the draft order laid before the House on 1st July be approved. [28th Report from the Joint Committee.]—(Lord Cameron of Lochbroom.)

3.19 p.m.

Lord Morton of Shuna

My Lords, any increase in the number of judges in the Court of Session is to be welcomed. We have heard that there have been two increases since 1968, and this present increase of one is now far too little and far too late. I remind the House that the order relates to the maximum number of judges. If we suddenly find that we have too many judges—which has never been the case, in my experience—it is fairly easy not to appoint a replacement when a judge retires.

Many noble Lords will have read an article in The Times today commenting on the problem of congestion due to increased business in the courts in England and Wales. The situation in Scotland is similar, if not worse. While one welcomes the initiatives to look into whether there are methods of dealing with the business more quickly, these researches will take some time, and the matter is urgent. I should have thought it would be quite easy to have an increased number of judges now when one is dealing only with a maximum number.

We have heard many statistics from the noble and learned Lord the Lord Advocate. It is my impression—not a statistic—that in the last four years there has been an increase of about 300 per cent. in delays for appeals, and the same situation occurs for delays in cases coming to proof on the civil side. These delays will tend to increase because of the increased criminal work, the recent revaluation of property in Scotland—which even the Government will recognise is liable to produce a heavy load of appeals to the valuation appeal court, which of course have to be dealt with by the same judges—and the new procedure (new for Scotland that is), of judicial review, which is already producing a considerable number of cases which have to be disposed of very quickly if the system is to work.

I suggest that there has been for several years a clear need for the appeal divisions of the court to sit in three courts at one time rather than to continue the present habit of having only two courts available. For this to happen it is necessary that there should be more than one extra judge. I suggest that the number of judges should be increased to a maximum of 25 rather than giving Scotland only one more judge, but any increase is welcome and I do not oppose the approval of the order.

Lord Rawlinson of Ewell

My Lords, having heard what my noble and learned friend has had to say, perhaps I may say from these Benches—though I see I am being waved at by my noble and learned friend—that I hope there are sufficient judges in Scotland, because in the jurisdiction of which I have knowledge in England and Wales, the very unfortunate habit has grown up whereby when judges retire by virtue of age or for some other reason, they almost immediately come back and sit on the Bench. If you look at the daily cause list in London you will see that every day there are retired judges sitting in the appeal courts. They are called to this work in order for the appeals to be heard and the work to be done.

I can understand that great judges are called back to do appellate work in the House of Lords and in the Privy Council. I see the purpose and the point of that. But I think it is very unfortunate if, when a judge in the court of appeal retires, he immediately comes back and sits there as an extra judge. I do not know whether that happens in Scotland but I hope it does not, because in my view it is not a sensible system.

Therefore, having heard what my noble and learned friend has said about the number of judges, I, too, am a little surprised that the maximum is now only one more than it was before, having regard to the scale of business which the judges of Scotland, with their tremendous reputation, so skilfully manage to deal with at the present time.

Lord Wilson of Langside

My Lords, we Scots are a broadminded people, even the lawyers among us, and we welcome the English—I was about to say "foreign"—intervention into this little Scottish matter. Any step in the direction of reducing the law's delays is surely at first sight to be welcomed, and indeed this particular step is welcomed from these Benches, because delay is perhaps the most significant problem of the law which bears so hard upon the people who are involved with it.

Your Lordships are surely well aware that there is a tendency in the public service, when faced with a problem, to demand of the Government more resources, which means more people and more money. There is also a tendency—I put it no higher—in the public service to present Government with such demands before they have explored exhaustively the possibility of solving the problem or alleviating it by making a more efficient and intelligent use of the resources which are already available. Accordingly, I was particularly encouraged when the noble and learned Lord the Lord Advocate apparently indicated that this situation was very much in the minds of those who have responsibility for the Court of Session in Scotland and the High Court of Justiciary.

Against that background, perhaps I may ask the noble and learned Lord one or two questions, because I do not share the enthusiasm of the noble Lord, Lord Morton of Shuna, for the view that the problem can always best be solved by putting more people on the job.

When I was last in the field the Quarter Sessions never sat on a Monday. I wonder whether that is still the situation, and, if so, why is it that they do not sit on Monday? The sheriff court sits on Mondays. I have often asked that question in private and I have never had a really satisfactory answer. When I was last on appeal courts, of course, a significant number of the judges of the Outer House of the Court of Session sat on Saturday mornings, and this was part of the answer which was returned. They dealt in those days with undefended actions for divorce. But I understand that, with the changes in the laws and the procedure and the jurisdiction in divorce, the need for that procedure has gone. Can the noble and learned Lord the Lord Advocate tell us whether in fact any of the Outer House judges sit on a Saturday morning?

I am not suggesting that people can sit on the Bench for indefinite periods, and I am not suggesting that there should be a maximum period for which learned judges can occupy the Bench, but I wonder whether, by sitting on Mondays, a considerable impact might not be made on the problem of delays so far as the civil work of the courts is concerned. Perhaps the noble and learned Lord the Lord Advocate can tell us.

I think there are two other matters which merit consideration in so far as the delays in the Scottish courts are concerned. The first is the question of whether to any extent the delays have been contributed to by an abuse of the existing Scottish criminal legal aid system which many people in the field think is present.

The final question is to ask whether the noble Lord the Lord Advocate is satisfied that the deployment of the service of the procurator fiscal in the field is efficient. There is a widespread feeling among those still in the field, as was my feeling when I was in it, that it is the failure efficiently to deploy the resources of the procurator fiscal service that is a not insignificant factor in producing delays.

3.30 p.m.

The Earl of Selkirk

My Lords, I congratulate my noble and learned friend the Lord Advocate on getting one judge, though I suspect very much that what my noble and learned friend Lord Rawlinson and the noble Lord, Lord Morton, said is perfectly true: that is probably inadequate. I recognise that there may have been quite a big contest even to get as far as this. I should like the Lord Advocate to remember that this House, so far as understanding it, recognises that there is probably an inadequate number of judges sitting at the present time. I think that I am right in saying that there has been something like a 50 per cent. increase since before the war. My memory is not as good as it was, but the figure is in that order. All that does is to reflect an extremely sad situation which perhaps will require other solutions; but at the moment this is certainly necessary.

Lord Galpern

My Lords, in view of the construction of two additional courts in the existing High Court buildings in Glasgow, would it not be advisable at least to obtain powers to increase the number to 25, as suggested by my noble friend Lord Morton, to be ready for those courts coming into use?

Lord Cameron of Lochbroom

My Lords, I am most grateful to all those who have spoken in this debate. I recognise that there are always views upon the correct number for an increase; but I take it from what was being said from all sides of the House that at least an increase is felt to be justified. I am grateful to noble Lords for accepting that.

It has been suggested that this is far too little and far too late. That was how the noble Lord, Lord Morton, put it. The maximum number of judges was increased by two in 1977, but the opportunity to take up the last of those two additions was taken in October 1983. Noble Lords will understand that it was taken fairly late in the day and will recognise that the situation had arisen before then. I am dealing with the situation since that time.

In relation to valuation appeals, I think that the noble Lord, Lord Morton, will be well aware that recently, in the last Session of Parliament, there was legislation which, among other things, provided that the valuation appeal court—the court which would deal with valuation appeals—could be streamlined to allow that court to consist of only one judge as opposed to what had previously been a three-judge bench. That will be a substantial improvement—the most efficient use of resources to which the noble and learned Lord, Lord Wilson, referred.

I would say to my noble and learned friend Lord Rawlinson that there is a provision within the current Law Reform (Miscellaneous Provisions) Bill which would allow judges who have retired but not reached the retiring age of 75 to be recalled to duty on the Scottish bench. I think that I stated in the Second Reading debate that that would be used sparingly, really to take account of sudden emergencies, illness and the like.

The noble and learned Lord, Lord Wilson, raised the question of Mondays. I can assure him that that matter will be looked at in the review that is to be established. I accept of course that it is only in the High Court that criminal courts sit on Monday. Civil courts have not sat on Mondays. The noble and learned Lord will be well aware that over a considerable period of time consideration has been given to that matter, and the general trend of opinion has been to suggest that the benefits of such sittings are more apparent than real. Perhaps I may put it this way. There are statistics which the Lord President himself collects, and they show that the average number of days per year which are worked by a Supreme Court judge equate very closely to those worked by sheriffs, notwithstanding the fact that in civil matters they do not sit on Mondays. Your Lordships will understand that if there is an increase in the number of cases coming before the courts, there must be adequate time for judges to prepare the judgments in those cases in order that justice can be properly done.

With respect to the noble and learned Lord, Lord Wilson, the efficiency of the procurator fiscal service does not bear upon the matter with which the order is concerned. No doubt he can raise the matter if he so wishes on a different occasion, but I assure him that it is nothing to do with the efficiency of the fiscal service. I should only like to put on record that the people in that service do their work under great difficulties extraordinarily well. I am sure that the House will recognise the valuable part that they play in the criminal system in Scotland.

I am most grateful to all those who have spoken. As I say, I take it from what has been said that your Lordships are satisfied that the draft order should be approved.

On Question, Motion agreed to.