HL Deb 25 October 1990 vol 522 cc1655-8

180A

Lord McCluskey

rose to move, That the House do disagree with the Commons in their Amendment No. 180.

The noble and learned Lord said: My Lords, I beg to move Amendment No. 180A. I tabled the amendment to draw attention to that which is being proposed; that is, the appointment of temporary judges. That subject cannot be discussed fully at this time of night. In my opinion it is not necessary or desirable that temporary judges should be appointed.

We do not need temporary judges to get through the work. There are already a number of judges who are full-time, and a number of retired judges— colloquially known as "mothballs"—brought back from retirement for a few days at a time. The mothballs are able to fill the gaps where there are problems in finding sufficient judges.

I do not believe that even the system of bringing in the mothball judges is very satisfactory. First, they are apparently to be restricted to appeal work. Therefore one has mothballs sitting in the appeal courts and appeal court judges doing first instance work. Secondly, as indeed is the position this very day, an appeal court—the final court in the country for criminal matters—may consist of two retired judges brought in for the day along with one permanent judge. That means the final criminal court in Scotland consists of one full-time judge and two others. One can see that the situation will only get worse if temporary judges are brought in.

My next point concerns the people to be appointed as temporary judges. I imagine there are only two possible groups of persons from whom they may be chosen. The Lord Advocate will no doubt correct me if I am wrong. Those with the power under the scheme may choose to bring in sheriffs or sheriff principals. As I understand the position, at the moment there may be as many as 10 temporary sheriffs sitting on any one day at the Glasgow sheriff court because there is too much work for existing sheriffs to do. It does not solve any real problem to take an existing sheriff from an overworked sheriff court like Glasgow and have him sit in the Court of Session or the High Court of Justiciary. The same applies to sheriff principals. They are extremely busy men and cannot spare the time to help out in the Supreme Court in Scotland.

If the temporary judges are not to come from there, then they must come from the ranks of senior counsel. It is a very bad idea for senior counsel to sit as temporary judges on the Bench on Tuesday or Wednesday, and potentially appear on Thursday and Friday in front of the same judges as they had lunch with on Tuesday and Wednesday as their colleagues as temporary judges. That is pure Dickens. It may be recalled that Dickens mocked that constant changing of position when it happened in the 19th century. It should not be introduced into Scotland.

I feel very strongly about the matter, and for that reason I seek the support of the House for this amendment. I beg to move.

Moved, That the House do disagree with the Commons in their Amendment No. 180.—(Lord McCluskey.)

Lord Morton of Shuna

My Lords, with a great deal of diffidence I rise to speak on this point. It appears to me that in considering temporary judges the Government are applying to Scotland the position that applies in England where one has part-time judges, recorders and deputy High Court judges. That may work well in England but there is a far larger Bar in England and the recorders and deputy High Court judges can be dealing with work in courts where they do not normally appear.

The situation is completely different in the Court of Session, where there is a small Bar and a small court, both in the one building. It would be inappropriate to have people appearing, as the noble and learned Lord, Lord McCluskey, said, on one day as a judge and on the next day as counsel. It just would not work.

The question of retired judges does not, I think, arise on this amendment but I fully agree with the noble and learned Lord that to use them only on the appeal procedure runs the risk that the public will not have confidence in the Appeal Court.

Lord Fraser of Carmyllie

My Lords, I shall endeavour to respond briefly. While there are arrangements in various forms for members of the Bar and others in England to take up temporary positions as judges, I should like to stress that the institution of temporary judges in Scotland is not a matter of imposition from a southern system but a proposal made by a very distinguished senator of the College of Justice, Lord Maxwell, in the review that he prepared a few years ago.

For just the reasons outlined by both noble and learned Lords, I do not envisage an extensive use of temporary judges. However, one certainly wishes to provide for that possibility and I confirm—it is not of course entirely a matter for me—that the two obvious groups from which they might be drawn are the senior end of the Bar or the present permanent sheriffs. Again, for the reason given by the noble and learned Lord, Lord McCluskey, one would not envisage any excessive use of them because that would be to take people from one end of the system to do a temporary job in the Court of Session or the High Court of Justiciary and would therefore draw more temporaries into the sheriff courts. Nonetheless, the opportunity would be there, but I stress that it would be entirely a matter for the Lord President to determine what work should be undertaken by the temporary judges, be it in the criminal or civil areas. It is not for me to suggest now what work he might consider to be appropriate.

What we are providing is a useful additional opportunity for the Lord President to see that the proper business of the courts in Scotland is dealt with as expeditiously as possible. He will have the opportunity to use retired judges—I think I should use the full title rather than the popular name—and the opportunity to use temporary judges. However, the vast majority of the work in the Court of Session and the High Court of Justiciary will be done by senators of the College of Justice on a permanent basis.

Lord McCluskey

My Lords, nothing that the Lord Advocate said reduces my anxieties. He said, rightly, that the Lord President of the Court of Session would determine what work is to be allocated to the temporary judges. That raises a slightly different point to any of the concerns I have hitherto expressed.

If the Lord Advocate is familiar with the history of the English judiciary—in particular, that excellent work, Lives of the Lord Chancellors, and, indeed, the work of Professor Griffiths on the politics of the judiciary—he will appreciate that the power to determine which judge hears which case is a power that is open to abuse by those who exercise it. It was commonly abused by Lord Chancellors up to and including the early part of this century. We should not create that possibility.

I do not like the idea that the Lord President can bring in a temporary judge from the senior Bar, a person who is bound to think he is on probation regarding whether or not he will get a permanent appointment, and then give him a particular case to determine. That is the way to a loss of confidence in the independence of the judiciary, and that I would deplore. It is for those reasons that I have wanted to voice my opposition, but plainly I cannot force this to a vote. Accordingly, I beg leave to withdraw the Motion.

Amendment No. 180A, as an amendment to Commons Amendment No. 180, by leave, withdrawn.

On Question, Motion agreed to.