HL Deb 03 December 1991 vol 533 cc168-74

The Lord Advocate (Lord Fraser of Carmyllie) rose to move, That the draft order laid before the House on 14th November be approved [3rd Report from the Joint Committee].

The noble and learned Lord said: My Lords, the draft order seeks to increase the maximum number of judges of the Court of Session from 24 to 25. Until 1968 the number of judges at the Court of Session, who also act as judges of the High Court, was determined by statute but the Administration of Justice Act of that year, which fixed the number of judges at 19, also provided that future increases should be by way of Order in Council. Since that time four such orders have been made: one in 1972 for one judge, the second in 1977 for two judges, the third in 1985, and the fourth in 1986, each for one judge. It is some five years therefore since authority was last sought to increase the number of judges of the Court of Session.

The reason which prompted the present draft 1991 order is essentially the same as that which led to the earlier orders; namely, the continuing and substantial increase in business in the Supreme Courts, both first instance and appeal. Between 1986 and 1990, the number of criminal appeals increased from 2,070 to 3,038. The number of judge sitting days devoted to criminal work, both first instance and appeal, increased from 1,606 to 1,852. Over the same period, the number of contested first instance civil cases increased by no less than 65 per cent. and the number of contested civil appeals increased by 31 per cent.

Over a period of five years when the volume of court business increased so substantially, the Supreme Courts have been able not only to cope with these workloads but also to reduce delays significantly. For ordinary civil proofs, the period before a court hearing which stood at 15 months in 1986 was reduced to five months by 1990. For criminal appeals against conviction where the appellant is in custody, the delay period has been reduced from four-and-a-half months in 1986 to one month in 1990. Those are but two examples of very significant improvements which have been secured in the Supreme Courts in recent years. Such a state of affairs cannot be achieved other than by the application of a great deal of careful thought and the expenditure of much energy. I would wish to pay tribute in that regard to the inspired leadership of both Lord President Emslie and Lord President Hope, and to the very considerable work of judges and court service staff.

The Supreme Courts have therefore been able, with 24 senators, to contain considerably increasing workloads over the past five years and, at the same time, to pull back on court delays. It is now abundantly clear, however, that unless the number of senators is increased, court delays will worsen significantly. Given all the progress secured in recent years, that would be most unfortunate. It is to avoid that situation, and to enable the Supreme Courts to continue to deal timeously with business brought before them that the Government, at the request of the Lord President of the Court of Session, have decided to bring forward a draft order to increase the number of senators from 24 to 25. I beg to move.

Moved, That the draft order laid before the House on 14th November be approved [3rd Report from the Joint Committee].—(Lord Fraser of Carmyllie.)

Lord Macaulay of Bragar

My Lords, on this side of the House we welcome the order but it raises a question as to whether it is sufficient to deal with the Scottish position in the Supreme Courts. As the noble and learned Lord said, it is five years since the last order was made but the workload on senior judges has been ever increasing. Sadly in Scotland there has been a 15 per cent. rise in criminal work for the senators of the College of Justice. There has also been a tremendous expansion in civil work.

What is happening in Scotland is worthy of some criticism: there is provision to use retired judges, subject to an age limit, and temporary judges to service the higher courts, both civil and criminal. At least the use of retired judges, forgetting the temporary judges for a moment, indicates that a real manpower shortage exists in the Scottish judicial system.

The retired judges are put into the Appeal Court to sit on either side of the presiding judge in that court to deal with appeals. That enables other judges who would normally be sitting in the Appeal Court to be released to deal with cases at first instance, both civil and criminal. However, questions must be asked regarding the policy of using retired judges. I ask these questions.

First, what is the annual cost to the Exchequer of using retired judges who have been declared by Parliament to be no longer eligible to sit as judges? Of course a statutory provision exists allowing them to be recalled. My information—right or wrong—is that the daily fee for a retired judge on a considerable state pension based on his salary, runs close to £400 a day, being around £370 as a fee for sitting in the court plus expenses of not less than £25. I may be wrong in that regard. However, to use a quote from the Orkney inquiry, I do not see why there should be a judicial gravy train for retired judges. If they are retired and the country says that they have done their service for the country, then they should be allowed to live in peace wherever they choose to go.

Secondly, why should they be used at all if the state says that they must retire? It is a contradiction in terms for Parliament to say, "You are too old to be a judge. But you can come back and be a judge provided you sit in the Appeal Court on one side or the other of the presiding judge".

Thirdly—and this is perhaps the most important question —is the use of retired judges sitting on a daily basis plus expenses masking the real position of the lack of numbers of judges in Scotland. In other words, if they were not available other judges would have to be used in the Appeal Court and the true extent of the lack of judicial manpower would be revealed.

Fourthly, the use of retired judges in that context may also be blocking promotion to the Supreme Court for people who would otherwise be eligible to become Senators of the College of Justice. I do not know of any other profession serving the public which retires people and then brings them back and allows them to behave as though they are not retired. That is a disturbing situation.

On speaking to judges—I have been known to speak to them occasionally—they complain, first, of over-work. It is a genuine complaint and I am sure that the noble and learned Lord the Lord Advocate will agree with me. Only last week I spoke to a judge who told me that he works from Monday to Thursday and seldom goes to bed before 2 a.m. That is a deplorable situation in which to place any man who is administering justice.

Secondly, in Scotland there is a lack of what is known as writing time; that is, time for both civil and criminal judges to sit back and reflect on their judgments. They are under tremendous pressure. As I understand the position, although a judge may take one or even a few days off when he wants to write a judgment, he will be suddenly whisked off —I hesitate to use the word "provinces" because they do not exist in Scotland—to other areas to hear a criminal case. Judges must be allowed to write their judgments, civil or criminal, in a civilised manner.

Thirdly, on more than one occasion judges complained that their holiday arrangements were completely disrupted due to the shortage of judges to deal with the work, particularly in the criminal courts. That situation is deplorable. I do not blame the Government; it is not their fault. However, we must recognise that there must be sufficient judges to give us a civilised system which leads to rational rather than hurried decisions.

Perhaps the noble and learned Lord the Lord Advocate could say on what statistical and population basis it was decided that one more judge will meet the pressure in the courts. Is the same statistical and population ratio used in England and Wales or is it merely because the Lord President says that he wants one more judge? I should like to know the reasoning behind it. The impression was certainly given that the Senators of the College of Justice are over-worked and certainly more than one judge is needed.

The salary of a judge is £84,000 a year. To the layman and indeed to me that is a lot of money. However, in terms of the total administration of justice it is nothing. We are talking of £84,000 plus a pension provided the judge is not over-worked and lives long enough to collect it. That is not a great deal to pay for the proper administration of justice.

The other matter that I wish to raise is whether the Government are giving consideration to the possibility of the civil courts sitting a five-day rather than a four-day week. The four-day week arose from the old days when the judges had to return from their country estates. Perhaps one or two still own country estates, although if one listens to some of them they cannot afford country estates on their salaries. However, the days of returning by coach and horse from the depths of Inverness or Sutherland are gone.

The five-day week operates in the sheriff court, in the lower courts and in England. The question must arise why Scotland does not do it. No doubt the answer will be that the judges need time to write their judgments. Well, let us have sufficient judges so that we can operate a five-day week with the judges being required to write their opinions, either civil or criminal, on the Monday and a sufficient number to deal with the work which requires attention.

The alternative is to look again at the sheriff court. I did not give the noble and learned Lord notice of this question and I do not expect an answer today. However, I should like to know the effect that increasing the power of sentencing in the sheriff court in criminal cases to three years in sheriff and jury trials has had on the running of the High Court. Has there been a drop in remitted sentences? As your Lordships will know, when a sheriff felt that he could not sentence someone to less than two years he referred the case to the High Court for sentence. That power has been raised to three years and perhaps consideration could be given—I do not say that it is a good idea—to raising the power of sentencing in the sheriff court to five years. I know that was considered in the past and cast aside because people did not trust the sheriffs to exercise a power of that standing, the power to sentence someone to prison for five years. But in the light of the rise in criminal cases to which the noble and learned Lord referred, it may now be appropriate to raise the sentencing power of the sheriff court to five years. After all, they are sheriff and jury proceedings and in England there is no difficulty in that regard. I do not see why there should be any difficulty in Scotland, and the Appeal Court, we hope, can always correct any silly decisions by the sheriffs.

That can only be done if the manpower is available to do justice to the system, to the judges themselves, to the litigants and to the accused. Justice under pressure is bad justice. Within reason everything must be done to relieve the pressure on judges.

In closing, I wonder why it is necessary—there may be some legal reason for it—to come here every so often begging for another judge. Why do we not simply take a broader approach? For instance, we could make a ceiling on the number of judges rather than going through what I do not wish to call a charade but what is an exercise of saying, "Please can we have another judge because the system is falling apart?" That is a ludicrous way of dealing with the system of justice in this country. I do not oppose the Motion because I want to see more than the number of judges covered in the Motion so that the judicial system of Scotland can progress in a way that will be recognised by the people of Scotland as being a good, fair and efficient system, and where the senior judges are not acting under considerable pressure as they are now.

7.45 p.m.

Lord Fraser of Carmyllie

My Lords, my honourable friend Sir Nicholas Fairbairn, QC, will no doubt be flattered to know that the legal spokesman for the Opposition in your Lordships' House has taken the care to read what he had to say when the matter was debated in another place. He too made the point that the original arrangement of four sitting days in the Court of Session was to allow for those with estates in the country to return to Edinburgh in good time.

As I understand the position, in England if one adds up the number of Mondays—or writing days as they are to be described—in both jurisdictions they come to pretty much the same number. It is a matter of interest whether in Scotland we follow that arrangement, with writing days following after, shall we say, a long difficult civil proof. I have no doubt that what the noble Lord said will be of considerable interest to the Lord President of the Court of Session. However, it is not directly germane to the difficulties encountered on the basis of the statistics I gave to your Lordships' House in seeking an increase from 24 to 25 judges.

Perhaps I can say with respect to the noble Lord that there is one matter on which it would appear to me he advances his argument on a false premise. Under the powers contained within the Law Reform (Miscellaneous Provisions) Scotland Act 1985, Section 22, the Lord President of the Court of Session, with the consent of the Secretary of State, may recall a retired judge to assist with the disposal of business, but he can only do so in circumstances where that judge retired in advance of what is now the statutory retiring age of 75.

Unless I have the position badly wrong, that is similarly the position on this side of the Border. In 1990 five retired judges were available who, together, provided around 250 court sitting days. Although the noble Lord opposite appeared to be somewhat critical of the contribution made by those retired judges, I would dissent from that. I consider that they have indeed made an important contribution.

More to the point, as regards the profile of the ages of judges in Scotland, the number of retired judges who will be available in the future under the age of 75 to assist in either the High Court or the Court of Session will not be that great. That is one of the factors that leads to the increase in the number of judges now being sought.

In direct answer to the noble Lord regarding the annual cost of using retired judges in the Court of Session and the High Court, the figure is around £100,000 per annum. He has used the language of criticism that has been adopted as regards the Orkney inquiry, but with a figure of £100,000 per annum that would not appear to be in any sense a gravy train.

When the present Lord Chancellor was Lord Advocate of Scotland he was very keen to emphasise to the sheriffs of Scotland that they had a power to remit from their own sheriff courts to the High Court where the Crown had mounted a prosecution in a sheriff court, but having heard the facts put before him and a verdict returned by the jury, the court decided that the gravity of the offence was outwith his existing sentencing powers. My noble and learned friend repeatedly urged that sheriffs should remit to the High Court if they thought that their sentencing powers were inadequate. As the noble Lord has raised the matter I return to it and encourage the sheriffs yet again that if they feel that they cannot impose an appropriate sentence because of the limitations of their powers, they should remit. As the public prosecutor in Scotland, I shall be more comfortable to instruct that more cases be marked from the High Court to the sheriff court. If I felt that the judgment was wrong as regards the severity of the offence, the sheriff court should be more willing to use its powers to remit.

That seems to be the better way forward. Instead of increasing yet again the sentencing powers of the sheriffs it would be more desirable if we moved down some cases. If it was then considered that we had the balance wrong the sheriffs should use their powers to remit. I cannot offer the noble Lord any precise statistics for obvious reasons, but my impression is that, because the Crown has marked a case down to the sheriff court, that court in some way takes that as an indication of the severity of the offence and the sheriff court is reluctant to remit to the High Court. I would not be uncomfortable at all if it dissented from Crown counsel's judgment as regards the severity of the offence and remitted to the High Court.

I am grateful to the noble Lord for his approval of the effort that has been made to increase the number of judges from 24 to 25. The arrangements that we have made for increases from time to time seem to be appropriate. I am sure that the noble Lord will appreciate that if the number of judges in Scotland is to be increased by one, two or three, that involves an extra burden on the public purse. The arrangements that we now have to bring the matter back before Parliament from time to time when an increase is necessary is the right way to do it.

Lord Macaulay of Bragar

My Lords, before the noble and learned Lord sits down, perhaps I may ask for clarification. On the figures that he has given it would appear that the money being paid to retired judges—I am not critical of them because they perform a great service in the Appeal Court—appears to exceed the cost of one other judge in Scotland. My arithmetic is notoriously incorrect, but it appears to work out at £104,000 on the basis of £400 a day. Is the noble and learned Lord saying that, although the Crown Office takes a decision to send a case to the sheriff court, that a sheriff exercising his authority within that court is now to be given a guideline saying, "We have sent this matter down to the sheriff court because we believe that it falls under the three years' sentence mark, but if you do not feel happy about that please send the case to the High Court and we shall sort it out there". That seems a rather dangerous practice to adopt.

Lord Fraser of Carmyllie

My Lords, as regards the latter point, I am not saying what the noble Lord suggests. There is a power to remit. As the noble Lord appreciates, sentencing is not a matter for the Crown. The Crown, and particularly Crown counsel, in marking cases for the High Court or the Court of Session, has to have some regard for the severity of the offence. The noble Lord has been a member of the Crown counsel team, and I do not believe that he would ever claim infallibility for that team in the assessment of the severity of an offence. All I am indicating, as my distinguished predecessor the present Lord Chancellor did, is that if the sheriffs consider that the offence or crime truly merits a more serious sentence than they can impose, then they should remit. The impression that I have, and I can say no more than that, is that in such circumstances they are very reluctant to do so because there seems to be an apprehension that we have a greater and more precise view about sentencing than we have.

The £100,000 figure is the one that I have given the noble Lord for the annual cost of retired judges. He has given the figure for the annual salary of a judge. If he works it out and takes account of what may be other ancillary costs, I have little doubt that the total figure would exceed that.

I am sure the noble Lord appreciates that from time to time there are peaks in the way that business comes before the courts. That is where the real value of retired and temporary judges comes in. I certainly do not suggest that we should in any way move to a very extended pool of retired or temporary judges rather than having full-time judges, but simply to have a limited number who can assist the courts in discharging their business. That is probably the best way to ensure that the business is performed expeditiously without imposing too great a cost on the public purse.

On Question, Motion agreed to.

The Earl of Strathmore and Kinghorne

My Lords, I beg to move that the House do now adjourn during pleasure until 8.30 p.m.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 8.1 to 8.30 p.m.]