HL Deb 10 November 1987 vol 489 cc1334-44

6.19 p.m.

The Lord Chancellor rose to move, That the draft order laid before the House on 23rd October be approved. [4th Report from the Joint Committee.]

The noble and learned Lord said: My Lords, I beg to move the Motion standing in my name on the Order Paper. The draft order relates both to judges of the Court of Appeal and to those of the High Court. I speak first of the Court of Appeal. The Court of Appeal is served by the Lord Chief Justice, the Master of the Rolls, and the Lords Justices of Appeal. The President of the Family Division and the Vice-Chancellor also sit in the Court of Appeal from time to time. The Lords Justices, however, comprise the main judicial strength of the Court. The maximum number of Lords Justices was set at 18 by Section 2(1) of the Supreme Court Act 1981 and subsequently increased to 23 by the Maximum Number of Judges Order 1983. The purpose of this draft order is to amend the Act so as further to increase that maximum to 28. I anticipate the filling of only three or four of the extra places at present.

There are two principal reasons for requiring an increase: continuing pressure of work in the Court of Appeal and my concern that Lord Justice Mustill should be free to some extent from judicial duties so that he will be able to devote more time to his duties as chairman of the Judicial Studies Board. Before explaining the details I should like to make clear what is my role as Lord Chancellor in putting forward these proposals.

I must do nothing to jeopardise the independence and integrity of the judiciary. My role is to provide the judges with the best that I can, within the inevitable constraints of public expenditure, by way of numbers of judges, efficient staff and suitable accommodation. I am looking forward to working closely with the judiciary, especially with the Master of the Rolls and the Lord Chief Justice, reports of whose retirement are, I am pleased to say, utterly without foundation.

I shall now deal in turn with the two principal reasons for the increase. Apart from the small number of cases that come to this House in its judicial capacity, the Court of Appeal is the pinnacle of our judicial system in England and Wales. We must preserve its status and efficiency.

Since 1983, when the maximum number of Lords Justices was last increased, the workload of the Court of Appeal has continued to increase. In the Civil Division (which takes up the greater part of judicial time available) the number of appeals entered has risen by 8 per cent. from the 1983 level to nearly 1,600 in 1986. Over the same period, the number of cases heard increased by about 18 per cent. This is a great compliment to the enormous amount of work done by the Master of the Rolls and the other judges involved, as well as those responsible for arranging the lists under their direction. However, the number of cases settled between entry and hearing declined by nearly 40 per cent. with the result that it has been virtually impossible to make inroads into the overall number of appeals outstanding—a figure which stood at 954 at 1st October this year. Accordingly, waiting times remain undesirably high. Although priority is given to cases of particular urgency, it can take as long as 18 months for an appeal against a final judgment of the High Court to be heard. This unacceptable situation will not be alleviated without further action since the continued increase in the total workload of the civil courts of first instance suggests that receipts in the Civil Division of the Court of Appeal will continue to rise with consequent implications for waiting times.

In the Criminal Division, the number of appeals entered increased by 20 per cent. Between 1982 and 1985 before falling by about 4 per cent. in 1986. It is, however, apparent that the inexorable upward trend in the caseload of the Crown Court is continuing. Figures for the first nine months of 1987 indicate an increase of over 16 per cent. in the number of committals for trial received by the Crown Court over the corresponding figure for 1986. Pressure on the Criminal Division, which is already heavy, may therefore be expected to grow accordingly. As it is, despite the determined efforts of the Lord Chief Justice, the other judges involved and the Registrar of Criminal Appeals, the number of cases outstanding at the end of 1986 increased by 7 per cent. over the end of 1985 figure, to over 2,800. Of these, approximately 7 per cent. were more than six months old; this again is unacceptable.

The Divisional Court of the Queen's Bench Division also places a substantial call upon the time of the Lords Justices. In 1986 it accounted for 267 days of the time of the Lord Chief Justice and Lords Justices—a figure which is the equivalent of the time of one-and-a-half judges and more than twice the 1982 figure of 120 days.

A minimum of 13 courts are now generally sitting in the two divisions of the Court of Appeal and the Divisional Court, generating a need for a minimum of 24 Lords Justices. This requirement increases to 26 when either the President or the Vice-Chancellor sits in the Civil Division enabling an additional court to operate there. The deficit has to be met by sittings by retired Lords Justices and High Court judges. In the first eight-months of 1987, retired Lords Justices sat on 239 days and the Vice-Chancellor, President and High Court judges on 1,671 days. In that period, both divisions of the Court of Appeal occupied some 3,881 judge days, an increase of 11 per cent. on the corresponding figure for 1986. In any one week up to four retired Lords Justices have been sitting. I am very grateful to those eminent judges who have continued to devote themselves in this way to the administration of justice after their retirement. It is very valuable to have such a reserve of judicial strength available; but, in fairness to them, I cannot allow the level of dependence on their services to become excessive.

The second reason for the increase is, as I mentioned, the need to allow Lord Justice Mustill to devote more of his time to the chairmanship of the Judicial Studies Board. I attach the utmost importance to the provision of the highest quality of judicial training and guidance. This I consider to be essential to the maintenance of standards of judicial performance and consequent public confidence in the judiciary. It is therefore imperative that the chairman should be enabled to devote a substantial amount of time to his work with the board.

These considerations amply demonstrate the need for an increase in the judicial strength of the court. As I have already stated, I do not anticipate that all five places will be filled immediately. If the order is approved, I consider only three or four additional apointments will be required immediately. I do however envisage that, given the continued likely increase in the workload of the courts of first instance, the full number of appointments will be required in due course. The order under consideration therefore allows some room for manoeuvre.

I turn now to the question of the High Court Bench. The High Court is served by the Lord Chief Justice, the President to the Family Division, the Vice-Chancellor and, currently, not more than 80 puisne judges of the court. At present, 79 puisnes are in office. I propose, by virtue of the draft order before the House, that the Act be amended so as to increase the statutory maximum to 85. I anticipate intitially an increase in the number in office by two, to 81.

Several factors combine to make the proposed increase necessary. These include growth in workload, excessive delay in hearings in the Queen's Bench Division, particularly in the Commercial Court, and the need to avoid excessive use of deputy High Court judges.

The workload of the civil courts has increased steadily since 1981. The only increase in the number of puisne judges in that period, from 77 to 79, has not been proportionate. The current situation is particularly acute in the Queen's Bench Division. The number of actions set down for trial in 1986 increased by 8 per cent. over the 1985 figure. In the first half of 1987 actions set down were 13 per cent. higher than in the comparable period in 1986. The upward trend seems likely to continue as the number of actions commenced is also rising steadily, by about 9 per cent. a year. Despite a drop in 1986 from the exceptionally high figure in 1985, which followed legislation reducing the minimum time within which a divorce petition may be filed, the number of divorce proceedings commenced has also been increasing. The number of defended divorce trials has been relatively steady but the overall trend in Family Division work is upwards. This is also true in the Chancery Division. In the Crown Court, workload continues to rise and there is no sign of a drop in the number of Class 1 and Class 2 cases which make the heaviest demands on the time of High Court judges.

Waiting times continue to be an area of concern. It may now take 18 months for an action, once set down in the general list of the Queen's Bench Division in London, to come to trial. The situation is particularly acute in the Commercial Court where a period as long as three years may elapse between the setting down and hearing of a case which is estimated to last six weeks. Waiting times are also long even for shorter cases. A four day commercial case may take over two years to come to hearing. There are delays elsewhere in the division, with delays of up to 23 months in the Admiralty Court and 12 months in the Crown Office List.

The commitments of a judge of the High Court are wide-ranging. He may sit on both civil and criminal work at first instance or assist in either Division of the Court of Appeal, and may also sit on the Employment Appeal Tribunal or act as chairman of the Law Commission. He may also be a member of the Parole Board, the Judicial Studies Board or one of the rule committees. In addition, High Court judges are frequently called on to perform other important functions, often at very short notice, such as the inquiries into the Bradford fire or Zeebrugge ferry disasters which may place a heavy call on judicial time.

I am also concerned about the heavy use which is having to be made of deputy High Court or circuit judges on High Court work. During 1986, some 29 per cent. of total sittings were conducted by judges other than full-time puisnes. Outside London, judges who were not regular High Court judges sat for about 50 per cent. of the days spent on High Court civil work. This is a very high level.

Both my predecessors and I have been concerned not to increase the size of the High Court Bench unless absolutely necessary. To this end, various initiatives have been taken to improve the efficiency of the civil justice system. These include provisions for the transfer of cases, including family work, from the High Court to the county courts and, as I have said, circuit judges increasingly exercise High Court jurisdiction.

More generally, however, the system is being scrutinised under the civil justice review. The review itself is being conducted by officials from my department and an independent committee, under the chairmanship of Sir Maurice Hodgson, has been set up to advise upon its conduct. A series of papers seeking views on possible improvements in the conduct of litigation in England and Wales has already been issued and recommendations are being formulated. These initiatives will, however, require extensive consultation, and if legislation is required a good deal of time to bring it into effect. They cannot realistically be expected to make an impact before the end of the decade, if then.

On this basis, and in the light of the circumstances to which I have referred, I consider it imperative to seek an early increase in the statutory maximum number of puisne judges in order to provide for medium term needs but without prejudice to longer term requirements. The present statutory maximum enables only one more appointment to be made. I am satisfied that a minimum of two is required as soon as possible.

As I have indicated, delays are currently most acute in the Queen's Bench Division. There is no room for complacency about the situation in the other divisions where workload pressures will require continuing attention but, provided that this order is approved, I anticipate that the two additional judges to be appointed will be assigned to the Queen's Bench Division. The proposed limit of 85 will, as with the Lords Justices, provide appropriate scope for the medium term. I certainly hope your Lordships will agree with me that the maintenance of an adequate number of judges in the High Court and the Court of Appeal is vital and that we further discharge our responsibility to secure this by approving the draft order. My Lords, I beg to move.

Moved, That the draft order laid before the House on 23rd October be approved.—(The Lord Chancellor.)

6.33 p.m.

Lord Mishcon

My Lords, the House will have listened with admiration and appreciation to the way in which this order has been moved by the noble and learned Lord who sits on the Woolsack. He has given us a very clear view of the state of affairs in our various courts and of the need to speed up, in the interests of justice, trials in courts of first instance and appeals in the two divisions of the Court of Appeal.

Some of us who are not practitioners in the law may have been somewhat surprised and disconcerted to hear, in the course of the report that the noble and learned Lord gave, what the figures are in regard to trials that are outstanding and the time which it is taking for the courts to hear them. I took a note of the figures that I was so grateful to hear. In the Civil Division 954 appeals were outstanding as at 1st October, and the time taken in regard to many of them will be 18 months before they come to be heard.

In the very serious other division dealing with criminal appeals, the noble and learned Lord gave us a figure, as I took it down, of some 70 per cent. of the cases by way of criminal appeal which are six months old. When we turn to the courts of first instance, our pride—apart from the other divisions—was always that our commercial court really operated as a commercial court and gave quick, adequate justice to those commercial considerations which came before it.

To hear, as we did, that a four-day case may take over two years before it comes on for hearing is to negate the very advantages of the commercial court, whereas we always thought that shortened pleadings and other institutions that were brought into the procedure would indeed lead to quick justice, which is obviously what commercial cases deserve. Against that background—and this is not the time to deal with procedural matters—how can anybody in your Lordships' House do anything else but approve the terms of this order which, hopefully, will ensure that cases are expedited in the course of hearing?

I have only one other observation to make and your Lordships will understand if I preface my remarks with a compliment, because I am asking the noble and learned Lord to do something; but the compliment is deserved even if I get a negative. He brings to this office a fresh, a fine and a fertile mind. He dealt with the number of circuit judges who sit as deputy High Court judges and who take on High Court judges' work. Will the noble and learned Lord bear in mind that a very large percentage of those are members of the side of the profession to which 1 have the privilege to belong? I am referring to solicitors of the Supreme Court.

When we are considering that we want quality as well as quantity in regard to an order of this kind, I cannot ask for more—but I do ask—than that that fresh, fertile mind will be brought to bear on whether it is indeed just, let alone efficient, to bar solicitors who sit as deputy High Court judges and circuit judges of great merit also from sitting as High Court judges. As I said, I leave that with the noble and learned Lord to make such observations as he cares to at the moment. But I shall be looking, if I may say this optimistically, to some sort of affirmative reaction in the days ahead.

Lord Denning

My Lords, I too should like to thank my noble and learned friend the Lord Chancellor for his clear and convincing statement of the need for more judges both in the Court of Appeal and at first instance. However, I hope that in the course of what we are doing we will not debase the currency. Our judges are, and have been, the best in any country in the world and if we increase the numbers as we do, unless they are also supplied by efficient members of the Bar or, I may add, of the solicitors' profession and are men of the best quality, we shall not retain that high standard. That is just a question of numbers.

However, on an occasion like this, perhaps I may for a moment look back to before the Second World War when I was at the Bar. There were six members of the Court of Appeal—the Master of the Rolls and five others. One did the common law work under Lord Justice Scrutton. The other did the Chancery work under the Master of the Rolls. The Lord Chief Justice of England took the criminal appeals just one day a week in the Criminal Appeal Court.

How different it is now! When I became Master of the Rolls the number of Lord Justices was nine. When I ceased to be Master of the Rolls in 1981 the authorised number was 18. Now the proposal is for a maximum of perhaps 28. That shows the scale of the problem. I think that the increase is necessary because the most important thing in a system of justice is that it should be quick in order to suit the needs of the people. Delay of justice is a denial of justice. I go back to our Magna Carta where it is stated: To none will we sell. To no one will we delay or deny right or justice". We must keep those objectives.

I wish to say a few words about the importance of the Commercial Court. The City of London is still one of the most important financial centres of the world. Banking, insurance, shipping and the commodity markets all deal through the City of London. Great legal expertise is needed to deal with the intricate commercial problems that arise. Thank goodness we have that expertise at the commercial Bar, on the commercial Bench of judges, in the legal profession and in the great solicitors in the City of London who provide great legal expertise to our Commercial Court. But delays must be met. Cases must not wait a year or two years to come to a hearing. They must be brought on quickly so as to serve our commercial community which is international in character. I believe that the Master of the Rolls stressed that point recently.

We have an efficient Bar, solicitors and judges. We must keep up their numbers so that cases will be dealt with quickly and speedily as they are at present. For that particular reason I support the Motion which the noble and learned Lord the Lord Chancellor has put down.

6.45 p.m.

Lord Boyd-Carpenter

My Lords, although my practice was rudely interrupted by the late Corporal Schicklegruber in September 1939 I am still a member of the Bar. I mention that because I am going to stick my neck out by saying that I support the noble Lord, Lord Mishcon, in the suggestion which he has just made that appropriate solicitors should be within the field of selection for High Court judges.

As the noble and learned Lord, Lord Denning, has reminded us, the numbers involved are dramatically different from when I was in practice before 1939 and from when the noble and learned Lord first went on the Bench. That fundamentally alters the situation. When the Bar was a small relatively select body with perhaps a touch of elitism about it it was natural that judges should be selected from it, particularly because the Lord Chancellor of the day and the Government of the day would know them all personally.

Today the position is wholly different. The noble and learned Lord the Lord Chancellor has reminded us of the very serious situation which the delay in the administration of justice illustrates. Therefore I suggest that a new and reforming Lord Chancellor should give very serious consideration to the suggestion which has just been made by the noble Lord, Lord Mishcon.

If noble Lords want an example of the suitability of at any rate a certain number of solicitors for such an appointment they only have to look at the noble Lord, Lord Mishcon, to see an extremely good illustration of that. I hasten to say that I hope that the noble and learned Lord the Lord Chancellor will not translate the noble Lord to the Bench because we should miss him a great deal in debates in this House.

I may be sticking my neck out again but I wonder whether in the appalling situation which the noble and learned Lord the Lord Chancellor has outlined consideration will be given as to whether it is necessary to preserve the long vacation at its present length. No one wishes to deny the judiciary the opportunity for a reasonable holiday or for time to work on judgments. I know that many members of the judiciary spend a great deal of time on that. On the other hand, while arrears are virtually piling up, although I know there are exceptions, to close the higher levels of the courts for about nine weeks seems to be a proposition which at least is worth looking at. It should not be unquestionable.

There may well be problems in doing that but if we compare the amount of vacation which the leaders of other occupations and professions have it would be rare to find a vacation of that length. Certainly the Minister will be aware that Ministers of the Crown do not receive holidays of such length, although some of them may well feel they would like to have them. I am not venturing at this stage to do more than suggest that I hope in the general view the noble and learned Lord the Lord Chancellor indicated he was undertaking he will not regard the long vacation in its present form as being necessarily sacred.

I wish also to say without impertinence that in the situation which has been described to us we are singularly fortunate to have on the Woolsack a Lord Chancellor of the ability and courage which the noble and learned Lord the Lord Chancellor has already shown.

Lord Ackner

My Lords, I strongly support the Motion and I wish to bring up to date a few factors in so doing. It was a long time ago that my noble friend Lord Boyd-Carpenter was at the Bar. It was quite some time ago that I was at the Bar, but in 1961 when I became a QC the number of those at the Bar was under 2,000. The number now is over 5,000 and there is not the slightest suggestion that the Bar is not capable of providing the additional supply of judges and a great deal more, as the noble and learned Lord the Lord Chancellor mentioned.

As my noble and learned friend Lord Denning said, the quality of the Bench has never been higher. The quality of the Bench depends upon the quality of the Bar. If the quality of the Bench has never been higher, as I believe is the case, that is an excellent indication that the Bar, as always, has been capable of meeting the demands with which it is faced.

It is axiomatic that one will not have an efficient judge, and one needs an efficient judge if the work is to be done expeditiously, unless that judge is an expert in the jurisdiction with which he is involved. In the High Court the only expert in that jurisdiction as matters stand is the Bar. If the question of the divided profession is going to be raised I must say that it is a long and difficult subject and one on which there has already been a Royal Commission report. That report which did not come out very long ago firmly supported the advantages of the divided profession. One of those advantages was the ability to provide a Bench as competent as that which exists at the moment.

My second point, to bring the House up to date, is that the long vacation no longer operates as people think it does. The judges changed that. The late Lord Beeching in his report said in terms that the nine-week closed season should cease, though not at the expense of the judges' vacation. Having studied the stresses and strains of that occupation, the report considered it to be thoroughly merited.

Judges, on their own initiative, set up a system under which there are substantial sittings throughout the long vacation. August is not a popular month with litigants. Neither plaintiffs, defendants nor witnesses want courts to sit to any great extent in August. But despite that fact, there are High Court judges sitting in the Commercial Court to deal with urgent matters and chambers judges, judges of the Court of Appeal (Criminal and Civil Division) and judges of the High Court at the Old Bailey sitting throughout August.

In September, the matter is quite different. There is basically a half-strength situation. Again it is litigants who urge that September is not an ordinary month. The Court of Appeal sat considerably more last year than it did the previous year. The implied suggestion that there is a nine-week closed season in the Royal Courts of Justice—an error which was perpetuated in the Civil Justice Review—is quite out of date. There is a clear indication that the courts realise the need for keeping matters continuously under review and using court accommodation, the shortage of which is one of the most serious difficulties that we face.

I strongly support what my noble and learned friend the Lord Chancellor has said. There is far too great a use of deputy judges. Nearly one-third of High Court civil matters being dealt with in London is dealt with by deputies and not by real High Court judges. Fifty per cent. of civil work is also being dealt with by deputies outside London. That is in the view of many a thoroughly unsatisfactory situation which cries out for even more ambitious plans in appointments than have already been mentioned. But I urge upon your Lordships the realisation that so far as the judiciary are concerned, they are doing all they can to accelerate procedures. However, waiting time (that is, the time between when the parties and their lawyers are ready to go to court and their actually getting a hearing date) is no longer the problem of the litigants themselves or of the judges. It is due entirely to the shortage of accommodation and judges available to hear the cases. The situation is an urgent one, and I therefore support the Motion.

Viscount Hanworth

My Lords, I speak as a layman, although on paper I am a barrister. We talk about the rule of law, and I think it is very important that that should remain in England and also that our judicial system should remain at least the equal of any other. I question whether it is. The delays which we have heard about tonight make the rule of law impossible in my view. I do not propose to suggest tonight what the solutions are. But something ought to have been done long ago. The situation as it is today is intolerable.

Lord Morris

My Lords, neither of the noble Lords who has spoken on these new proposals has wholeheartedly and vigorously supported not only the Bench of this country but also the litigants. I was looking forward to hearing from my noble and learned friend the Lord Chancellor of an even larger increase in the number of judges in the High Court than the figures he quoted for the Court of Appeal—namely, an increase of 22 per cent.—and of the number of judges in the Court of Appeal. That is true despite the fact that the cases listed—I know it is a crude measure—have gone up by nearly 8 per cent. I am surprised that it has not been possible to bring more support to the High Court for the reasons which my noble and learned friend stated so cogently. However, I am convinced that he brought as much pressure to bear as he possibly could in the circumstances, bearing in mind the eternal problem of supply, in order to get the results that he has so notably achieved.

One more minor matter, notwithstanding what has been said from the Cross-Benches, is that I believe that if Parliament is to suggest to the Bench and the Bar solutions in the matter of the long vacation, they ought to look first at their own long vacation.

The Lord Chancellor

My Lords, may I first say how grateful I am for the very kind remarks that have been made about me personally in the course of your Lordship's support of the Motion which I have moved? I now address myself to some of the matters which have been raised. So far as the long vacation is concerned, my noble and learned friend Lord Ackner has pointed out that there has been a considerable change in recent years in that respect. If your Lordships wish to read more about it, the report of the Master of the Rolls deals with vacation sittings and shows the extent to which the court now sits in vacation.

That report supports the point that my noble and learned friend made—namely, that there is a great deal of difficulty in getting litigants and perhaps their legal advisers—solicitors and counsel—to be willing to proceed in August and to some extent also in September. However, your Lordships may take it that the Master of the Rolls, the judges in the Court of Appeal (Civil Division) and the Court of Appeal (Criminal Division), the Lord Chief Justice and judges in the High Court are certainly looking to the long vacation, as it used to be, to help them overcome the burdens that they face, though there are practical limits which make it impossible to achieve as much in that respect as at first sight might be thought attainable.

I also take the point that my noble and learned friend Lord Denning made. Numbers are increasing and we must be careful not to debase the coinage. Your Lordships may take it that I shall do my best to maintain the same high standard of justice that prevailed in the courts when my noble and learned friend Lord Denning was active in them. If my noble and learned friend Lord Ackner is right, we might be able to improve even on that high standard.

As regards the question of solicitors, I have arranged, in pursuance of arrangements which were already established, that my officials should discuss with the Law Society improving the means of selection and drawing to our attention solicitors who are suitable to sit as judges. I hope that the result will be that more suitable solicitors may be found to sit as assistant recorders, recorders and as circuit judges. Your Lordships will know that Parliament discussed the question of whether solicitors should be eligible for appointment to the High Court Bench as recently as the debate on the Supreme Court Act of 1981. My recollection is that in Section 10(3) of that Act, Parliament decided that solicitors are not by statute eligible at present for the Bench of the High Court. Therefore the activities which it is within my power to carry on in this field are limited to the activities which I have just described.

I should like also to endorse the point made by my noble and learned friend Lord Denning about the importance of the Commercial Court. I am very aware of the critical importance of that court and of the necessity to do what we can to maintain it. It is one of the matters which is central to the present order. I believe that it enjoys in respect of commercial matters a very high reputation internationally and I shall certainly do my best to maintain that position.

There is one small point only and it is this. I think the noble Lord, Lord Mishcon, in quoting my figures possibly wrote down the percentage sign after the seven making it 70 per cent. instead of, as I hope I said, 7 per cent. of outstanding criminal appeals which are older than six months. That itself is an unacceptably high figure, bearing in mind that they are criminal appeals in which the liberty of people is in issue, and it is obviously necessary that these should be disposed of as soon as possible.

I hope your Lordships will feel able to approve this Motion.

On Question, Motion agreed to.