Lords Sitting of 22 October 1992

Preamble
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Chelmsford.

The Broadcasting Complaints Commission
Viscount Tenby Viscount Tenby asked Her Majesty's Government:
Whether the Broadcasting Complaints Commission is in breach of its statutory duty to adjudicate complaints about unfair programmes under the Broadcasting Act 1990 in having refused to tell a complainant whether or not his complaint was upheld.
Viscount Astor: My Lords, under Section 146 of the Broadcasting Act 1990 the Broadcasting Complaints Commission is required to publish periodical reports of individual complaints that it has dealt with. Where the commission has adjudicated on the complaint the report must contain a summary of its findings.
Viscount Tenby: My Lords, I thank the Minister for his Answer. However, will he accept that it is bordering on the ridiculous for the Broadcasting Complaints Commission to refuse to give a verdict to a complainant—to use a rather curious phrase—as a matter of principle? Does he agree that the main task of any complaints authority must be to say in quite unequivocal terms whether or not a complaint has been upheld? That task, incidentally, is one which is carried out admirably by similar bodies such as the independent Radio Authority and the ITC.
Viscount Astor: My Lords, the Government believe that the commission performs a very useful function in providing an avenue of redress for members of the public who feel that they have been badly treated by the broadcasters and for those whose complaints fall within the commission's remit. The formulation of the summaries of the findings is of course a matter for the commission.
Lord Renton: My Lords, is my noble friend aware that Parliament has placed upon the commission a quasi-judicial function to decide complaints and let the complainants know the result of the decision? Is he also aware that if the commission fails to do so, it is not acting quasi-judicially and is not following the simplest rules of justice?
Viscount Astor: My Lords, the complaints made to the commission are often extremely complex, as are the answers. It is not often a simple black and white answer as to whether or not a complaint is right; indeed, there are aspects to some complaints that may or may not be correct.
Baroness Birk: My Lords, I should like the Minister to put me right in one respect. Am I wrong to be under the impression that in fact the findings are sent to the complainant, that they are also published in the TV
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Times and then during a peak-viewing hour the answer is given in a programme? Has this situation arisen because of one particular case—which I believe may have triggered this matter off—where the complainant wanted the matter gone into again but ultimately disagreed with the findings? I think that that is fair and one cannot argue with that. But is there a possible appeals procedure? Perhaps there is and I do not know of it. Can the Minister let me know?
Viscount Astor: My Lords, the noble Baroness is absolutely right. The Broadcasting Complaints Commission sends copies of its adjudications to the complainant and to the broadcaster in advance of publication. Copies of all the adjudications are sent to the national and provincial press. Of course, as with all decisions of that nature, a complainant may seek judicial review. I understand that at present five such cases are pending.
Lord Orr-Ewing: My Lords, will my noble friend seriously consider the point made from the other side of the House? Is it not very unfair on two people to leave them without any knowledge and to use words in the judgment in respect of the programme about which they are complaining such as "misleading" and "partially unfair", while the other four regulatory authorities all come to a clear decision: either it is upheld or it is not? I must say that I do not always agree, but at least they make that judgment. As the matter builds up, it seems desirable for us to find some way of making it possible to appeal against the findings of the commission.
Viscount Astor: My Lords, as I said before, the findings are a matter for the Broadcasting Complaints Commission which I know gives very careful attention to the precise wordings. It would not be appropriate for me to comment on a particular complaint or on the way it was dealt with by the commission. But I repeat that if any complainant is not satisfied they can go down the road of judicial review.
The Earl of Flalsbury: My Lords, for a reason I cannot explain I am in monthly receipt of reports from the Broadcasting Standards Council. I refer to Complaints Bulletin No.21 of October this year. My question is directly concerned with it. A Mrs. Jones of Dyfed complained at the showing of a homosexual wedding ceremony which concluded with two men kissing each other. The complaint was upheld. I have now read that out. It is a public document which will appear in Hansard. Is there any good reason why Mrs. Jones of Dyfed should not know what I know?
Viscount Astor: My Lords, the noble Earl is talking about the Broadcasting Standards Council which is a different body responsible for standards of taste and decency; for example, the portrayal of sexual violence in programmes generally. The Broadcasting Complaints Commission adjudicates upon complaints of unjust treatment of broadcast programmes which affect an individual who is mentioned or referred to or who has something to do with the programme.
Lord Orr-Ewing: My Lords, this point arises out of my noble friend's earlier reply. Perhaps I may point

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out that judicial review will take a year or two and cost the complainant £100,000 in legal fees. It is not a sensible solution. Surely one could have an appeal procedure which is quicker and cheaper?
Viscount Astor: My Lords, that would be difficult because the Broadcasting Complaints Commission takes a long time to come to its decisions. It is a costly procedure. It takes decisions with extreme care.
Lord Peyton of Yeovil: My Lords, would it be possible to amalgamate the two bodies to which my noble friend has referred?
Viscount Astor: My Lords, we have no intention of doing so at the moment. As I said, they carry out two separate functions.
Baroness Birk: My Lords, the Minister, perhaps inadvertently, did not reply to one of the questions I asked, which may have been one of the most important. It related to the possibility of having an appeals procedure which would deal with the whole matter.
Viscount Astor: My Lords, I apologise to the noble Baroness if I did not give her a full answer. My right honourable friend the Secretary of State will keep the matter under review, but we have no plans to legislate to change the way in which complaints are dealt with at the moment.
Viscount Tenby: My Lords, is the Minister aware that the complainant involved is not querying the findings? That is not the point. He is asking that a verdict, in simple unequivocal terms, be given as to whether or not the complaint is upheld. In the light of those circumstances—I accept that there may not be a statutory obligation on the part of complaints authorities to do so—will he undertake to remind such bodies of the desirability of their communicating, in simple English, such facts, as a matter of common sense and justice?
Viscount Astor: My Lords, the new chairman of the Broadcasting Complaints Commission, the Reverend Canon Peter Pilkington, is seeing my right honourable friend the Secretary of State next Monday. We shall of course draw his attention to what has been said in the House today.
Lord Donaldson of Kingsbridge: My Lords, surely it is not a question of common sense; it should be a question of obligation. I have followed this discussion with total puzzlement. If one makes a complaint to a complaints commission, what does one receive as a result? Will the Minister tell me that?
Viscount Astor: An answer, my Lords.
Lord Donaldson of Kingsbridge: My Lords, that is a frightfully good joke of a not very high level. Will the Minister please give me a proper reply?
Viscount Astor: My Lords, as I said, one receives an answer from the Broadcasting Complaints Commission. One does not receive an answer from the
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Government. It is the Broadcasting Complaints Commission which is responsible for giving the answer.
Lord Donaldson of Kingsbridge: My Lords—
Noble Lords: Oh!
Lord Donaldson of Kingsbridge: My Lords, I cannot help it if noble Lords are bored with the subject. It is a matter of interest. If one complains to a complaints commission one must be told whether or not the complaint is upheld. As I understand it, the noble Viscount, Lord Tenby, was saying that that was not being done. Is that the case or not?
Viscount Astor: My Lords, some of the adjudications made by the Broadcasting Complaints Commission are complex. It would not be proper for me to try to paraphrase in simple language a complicated summary of a complicated complaint.

Legal Aid Costs
3.18 p.m.
Lord Boyd-Carpenter Lord Boyd-Carpenter asked Her Majesty's Government:
What is the estimated cost of legal aid in the current year, and what is the anticipated cost next year.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, the provision in the Estimates for legal aid this year is £858 million. It is likely that the final total expenditure will be greater than that and parliamentary approval for a Supplementary Vote will be sought in due course. The anticipated cost for next year will be published in due course along with the rest of the Government's expenditure plans.
Lord Boyd-Carpenter: My Lords, I thank my noble and learned friend for that extremely interesting Answer. Is he happy that so large an item of public expenditure should occur this year with the possibility, as I understand it, of an increase next year? Does he have any proposals for restricting that expenditure which, however worthy, is surely not entitled to the highest priority?
The Lord Chancellor: My Lords, obviously this is a matter of public expenditure which requires to be considered with other items in keeping public expenditure as a whole under control. I must consider carefully what must be done in that connection.
Viscount Hanworth: My Lords, what action is being taken to amend the present unsatisfactory solution in helping those who need aid and those who are prejudiced by it?
The Lord Chancellor: My Lords, the scheme presently in operation as approved by Parliament is not perfect; on the other hand, it gives a measure of help in an increasing number of cases. The effect of legal aid granted to one side is that it may be more difficult for the other side to recover costs as it would

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be in the ordinary course of events if the other side were successful. However, that is an incidence of the scheme that is difficult to eliminate.
Lord Mishcon: My Lords, does the noble and learned Lord agree that the provision of justice for our citizens is of the highest priority? Does he accept that a discussion of this matter, including the figures spent on legal aid, should in fairness include the remarks of the chairman of the Legal Aid Board who, giving the reasons for the increase, said,
"Problems caused by the recession have increased both the need for legal help in certain fields and the numbers of people eligible for legal aid. Solicitors arc speeding up cases. Payments have been made earlier because of efforts by courts and the board to speed up cases, taxations and determinations?"
I am sure the noble and learned Lord will agree that it is desirable that solicitors should speed up cases.
The Lord Chancellor: My Lords, it would certainly be right to take account of those three items. The noble Lord stopped reading just before giving the final reason of Mr. Pitts when he said finally that,
"costs of individual cases have continued to rise above the rate of inflation".
That is an important factor to which we must also direct our attention. We need to bear in mind all those reasons.
Earl Russell: My Lords, does the noble and learned Lord agree that as far back as written records extend it has been a major object of government policy, both in his country and in mine, to encourage those who believe themselves wrongly accused or vexed to have recourse to the courts and not to violence? Does the noble and learned Lord agree that that is an objective of the highest priority and that if any reductions in legal aid should endanger that objective it could have the effect of increasing and not reducing public expenditure?
The Lord Chancellor: My Lords, noble Lords will not be surprised to hear that I agree that the rule of law is preferable to any kind of mob rule or rule by violence. However, the costs associated with preserving the rule of law are costs covered by public expenditure in relation to legal aid. The overall needs of the nation in connection with the control of that type of expenditure must be kept in view when one is considering what it is reasonable to allocate to that aid.
Baroness Mallalieu: My Lords, is the noble and learned Lord aware that commendable though it is to try to reduce the level of money spent on legal aid, or at any rate to ensure that it is properly spent, the methods which have been used have resulted in large numbers of solicitors now refusing to undertake legal aid work? Those solicitors still undertaking the work are doing it in many cases for a remuneration the hourly rate of which is less than the cost of running their offices. Members of the Bar are increasingly declining to carry out legal aid work because the central taxation units are in many cases failing to pay for periods of up to a year. Will the noble and learned Lord give an undertaking that those problems are being addressed now and will be addressed effectively?
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Will the noble and learned Lord also reassure the House that in future there will be no resiling from the basic underlying principle of legal aid which is that those who need to be represented before the law should be able to be represented even if they cannot pay for that themselves?
The Lord Chancellor: My Lords, within my experience there is no question of being able to reduce the cost of legal aid. On the contrary it rises inexorably year after year. As regards the numbers of solicitors carrying out legal aid work, we do not have separate figures for the total number of solicitors but the number of officers receiving payment has reduced over the years but only by a fairly small extent. The central taxation teams deal with extremely large claims in many cases. They are dealing with taxpayers' money when they certify money for payment. Therefore the claims that are submitted must be scrutinised with care. I have done what I can to speed up that process and I shall continue my efforts in that regard but it is by nature a complicated process. I have introduced a system of standard fees which eliminates to a great extent unnecessary administration. I hope that I have the support of the noble Baroness in taking that step.
Lord Campbell of Alloway: My Lords, does my noble and learned friend agree that part of the essence of the problem of criminal legal aid is a simple want of competence on the part of the prosecuting authorities? There are long trials, multi-count indictments and many defendants. Those trials continue for months and months to the exhaustion of the jury and to the tedium of the judge. There are often many acquittals, if not total acquittals. The prosecuting authorities might consider returning to the practice that was adopted when I was a young man at the Bar when they took independent advice of the highest order at some cost on how to draft indictments, how to split trials and have short trials. Would it not be a good idea if the prosecuting authorities applied to the independent Bar to assist them in this regard?
The Lord Chancellor: My Lords, the House will understand that I do not have responsibility to Parliament for the prosecuting authorities. That is a matter for the Attorney-General. However, I am aware that a number of cases that have taken some time to progress have been prosecuted in court by members in private practice at the Bar who are colleagues of my noble friend. Many of those people have a high reputation at the criminal Bar and they act sometimes for the prosecution and sometimes for the defence.

Maastricht Treaty: Union Citizenship
3.27 p.m.
Lord Monson Lord Monson asked Her Majesty's Government:
What are the new duties which will be imposed upon every citizen of the "European union" under Article 8 if the Maastricht Treaty comes into force.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): None, my

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Lords. The provisions of the Maastricht Treaty establishing union citizenship confirm certain existing rights and confer some additional rights such as the right to vote in municipal and European elections in one's country of residence. However, they do not themselves impose any specific duties on union citizens.
Lord Monson: My Lords, that is a welcome reply. Is it not curious that the text of the treaty seems to imply otherwise? Will the Minister confirm beyond question that there are no new duties to be imposed which in the case of non-compliance could lead to penalties being imposed upon citizens of this or indeed any other country across the Community?
Baroness Chalker of Wallasey: My Lords, I agree with the noble Lord; but there are no specific duties imposed by the treaty. It might be argued that there is a general duty to obey Community law, but that derives from the fact that Community law is given effect in each member state. It does not therefore derive as such from union citizenship. I can therefore reassure the noble Lord on his final point.
Lord Stoddart of Swindon: My Lords, is it not a fact that we were given similar kinds of assurances when the Single European Act was discussed in this House and in another place? However, it was found that the Commission discovered all kinds of ways to introduce new measures outside the treaty in a way that was not hitherto thought possible. Will the Minister give us an assurance that the Commission and the court of law will not be able to impose duties on citizens of this country which this Parliament has not agreed?
Baroness Chalker of Wallasey: My Lords, I can assure the noble Lord, Lord Stoddart, that that will certainly be true, provided both Houses of Parliament pass the Maastricht Treaty Bill.
Lord Bruce of Donington: My Lords, will the noble Baroness give the House an assurance that the use of the terms "citizen" and "citizenship" does not carry any implication, however remote, that by being a citizen of the European union one in any way transfers one's allegiance? Will she take note of the fact that during the course of the negotiation of the Maastricht Treaty and ever since I have searched through my correspondence diligently and I can find no paper sent to me asking me whether or not I wish to become a citizen of the union? In the absence of such a letter, will she be assured that I would give such a request my earnest consideration but that my present inclination is not to wish to become a citizen of the union but to remain a citizen of the United Kingdom?
Baroness Chalker of Wallasey: My Lords, the noble Lord, Lord Bruce of Donington, is right. We shall all remain citizens of the United Kingdom. That particular and rather curious phrase simply applies to all who hold the nationality of a member state of the Community under the Treaty of Rome and the twin pillars now of the common foreign and security policy and of justice home affairs. It covers all three aspects.
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However, for every Member of your Lordships' House allegiance will always be to one Queen and to one country.
Lord Cledwyn of Penrhos: My Lords, does the noble Baroness agree that it is essential that citizens of this country should be aware of the contents of the Treaty of Maastricht? Is she aware that that is not the case? Will she speak to her right honourable friend and ask him whether he can arrange for the Government to publish a clear version and explanation of the Treaty of Maastricht which would be made available to people in advance of further consideration of the treaty by Parliament? Will she make sure that that is in English and in Welsh?
Baroness Chalker of Wallasey: My Lords, I think that I am supposed to say "Iechyd da" at this point. I can assure the noble Lord, Lord Cledwyn, that next week the Government will issue a short booklet explaining the treaty, how the Community works, and how the Maastricht Treaty would change it. I am quite certain that it will be published in Welsh, but it will certainly be published in Wales. I shall check on its being published in Welsh, which I agree with the noble Lord should be done. The booklet will be available through libraries and other institutions free on request. There is plenty of other information available from the explanatory memorandum by the Foreign and Commonwealth Office and the Treasury which is available from Her Majesty's Stationery Office bookshops.
Lord Cledwyn of Penrhos: My Lords, I am much obliged to the noble Baroness.
Baroness Seear: My Lords, am I correct in thinking that there are rather more Urdu speakers than there are Welsh?
Baroness Chalker of Wallasey: My Lords, I shall look into the matter for the noble Baroness, Lady Seear.

Community Care: Funding
3.24 p.m.
Lord Carter Lord Carter asked Her Majesty's Government:
Whether they propose to ring fence the funding for the implementation of community care in April 1993.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, the noble Lord, Lord Carter, as a doughty fighter for ring fencing, will have been pleased to have heard my right honourable friend the Secretary of State for Health announce her intention to introduce a ring-fenced special transitional grant for community care.
Lord Carter: My Lords, I thank the Minister for that reply. Is she aware that the White Paper Caring for People expressly rejected the case for ring fencing, saying that a large-scale specific grant is not necessary to secure the community care objectives. What has

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brought about this extremely welcome U-turn? Can she also indicate those areas of the community care budget which will not be ring fenced?
Baroness Cumberlege: My Lords, all the new money being transferred to local authorities next year from the social security budget will be ring fenced. My right honourable friend the Secretary of State for Health and her Ministers have considered all the representations that were made to them during the course of the consultation period, and agreed that it was right that the money should be ring fenced.
Lord Hailsham of Saint Marylebone: My Lords, can my noble friend arrange for there to be placed in the Library an official translation of the verb "to ring fence"?
Baroness Cumberlege: My Lords, I shall do my very best.
Lord Allen of Abbeydale: My Lords, is the Minister satisfied that what is proposed can be achieved under existing powers without the need for fresh legislation, having regard to the discussions we had on the 1990 Bill? As the mover of the amendment about ring fencing which was accepted by this House, is she aware that for once the Government have given great pleasure by at last seeing the light even though, as has been explained, not with complete clarity?
Baroness Cumberlege: My Lords, it is with great pleasure that I give the noble Lord the assurance that there are sufficient powers for the money to be transferred from the social security budget to local authorities and that it will be ring fenced. Perhaps this is an occasion on which we should rejoice that decisions made in your Lordships' House have been taken on board in another place.
Lord Mancroft: My Lords, can my noble friend explain to the House why the decision to ring fence drug and alcohol rehabilitation, in which I have some interest as your Lordships will know, has been completely reversed, a step which is more than likely to lead to those rehabs who are already financially stretched going bust in April 1993? Can she also tell the House why the Government have reversed the decision that the assessments of those admittedly difficult patients should now be made by local authorities as opposed to independent sector assessors when the Government have admitted that all the expertise lies not in the local authorities but in the independent sector?
Baroness Cumberlege: My Lords, the undertakings given by my right honourable friend the Home Secretary when Secretary of State for Health to ring fence specific funds for drug and alcohol services have been more than met by the fact that this total sum of money has now been ring fenced. It will give local authorities the flexibility to decide how much money they wish to spend on those specific services within the ring fenced money.
With regard to assessments, my noble friend will know that the assessments are to be made not only by the social services but also by people working in the
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health service and by voluntary organisations. It is essential that if the assessments are to be well done, all the agencies need to be brought in.
Lord Ashley of Stoke: My Lords, I agree with the noble Baroness that this is an occasion for rejoicing, and the Government should be congratulated on this very important ring fencing. However, in view of the known reluctance of local authorities to accept ring fencing, can the Minister assure the House that the Government will carefully monitor local authorities?
Baroness Cumberlege: My Lords, the noble Lord is right. On the whole local authorities are reluctant to have ring fencing. On this occasion they were unanimous in their support for it. The monitoring will take place through the Audit Commission, which will monitor the accounts of local authorities on an annual basis.
Lord Elton: My Lords, when my noble friend explains to my noble and learned friend Lord Hailsham that ring fencing means giving local authorities money for expenditure only for a specific purpose as opposed to an unhypothecated grant, will she explain how that definition fits with what I understand has happened; namely, the ring fencing of money for the treatment of drug and alcohol abuse being absorbed into the much wider purposes set out in the terms of this Question?
Baroness Cumberlege: My Lords, my noble friend will be aware that when the proposal was first made there was great anxiety that services for alcohol and drug abuse would be affected detrimentally because the money would not be spent on those services. My right honourable friend the Secretary of State for Health has decided that all the new money which is being transferred from the social security budget should be ring fenced, in which case we can ensure that some of that money will be spent on alcohol and drug services.

Business
3.38 p.m.
Lord Hesketh: My Lords, it may be for the convenience of your Lordships' House that at a suitable moment after 3.30 p.m. my noble friend Lord Caithness will, with the leave of the House, repeat a Statement to be made in another place on the supervision of the Bank of Credit and Commerce International.

Criminal Justice Bill [H.L.]
The Minister of State, Home Office (Earl Ferrers): My Lords, I beg to introduce a Bill to make provision about the jurisdiction of courts in England and Wales in relation to certain offences of dishonesty and blackmail; to amend the law about drug trafficking offences and to implement provisions of the Community Council Directive No.91/308/EEC; to amend Part VI of the Criminal Justice Act 1988; to implement provisions of the Community Council

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Directive No.89/592/EEC and to amend and restate the law about insider dealing in securities; to enable regulations implementing Article 15 of the Community Council Directive No.89/646/EEC and Articles 6 and 7 of the Community Council Directive No.92/30/EEC to create offences punishable in the same way as offences under Sections 39,40 and 41 of the Banking Act 1987; to make it an offence to assist in or induce certain conduct which for the purposes of, or in connection with, the provisions of community law is unlawful in another member state; to provide for the introduction of safeguards in connection with the return of persons under backing of warrants arrangements; and for connected purposes. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.—(Earl Ferrers.)
On Question, Bill read a first time, and to be printed.

Judicial Pensions and Retirement Bill [H.L.]
The Lord Chancellor: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the amendments for the Report stage be marshalled and considered in the following order—

Clause 1,

Schedule 1,

Clauses 2 to 22,

Schedule 2,

Clause 23,

Schedule 3,

Clause 24,

Schedule 4,

Clauses 25 to 27,

Schedules 5 and 6,

Clauses 28 to 31,

Schedule 7—(The Lord Chancellor.)

On Question, Motion agreed to.

Maintenance Orders (Reciprocal Enforcement) Bill [H.L.]
Report received.

Civil Service (Management Functions) Bill [H.L.]
3.42 p.m.
Report received.
Clause 1 [Delegation of Functions]:
[Amendment No.1 not moved]
The Parliamentary Secretary, Ministry of Agriculture, Fisheries and Food (Earl Howe)The Parliamentary Secretary, Ministry of Agriculture, Fisheries and Food (Earl Howe) moved Amendment No.2:
Page 1, line 11, leave out from ("to") to end of line 12 and insert ("any other servant of the Crown.").
The noble Earl said: My Lords, this amendment stands in my name and the names of the noble Lord,
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Lord Cledwyn of Penrhos, the noble Baroness, Lady Turner of Camden, and the noble Earl, Lord Russell. It may be helpful if I take this amendment together with Amendment No.3, which I am sure is intended to have the same effect.
The purpose of the amendment is quite simple. It is intended to allay the fears that were expressed in Committee by the noble Lord, Lord Cledwyn, and the noble Earl, Lord Russell, who felt that the present drafting of Clause 1(2) was ambiguous. Specifically, they considered that the subsection offered Ministers the power to delegate the powers they exercise over the management of the Civil Service to anyone they liked. In support of those concerns, it has been argued that the subsection would allow Ministers to designate anyone as a servant of the Crown and then delegate powers to him; or that the subsection was circular in so far as anyone to whom powers were delegated would by definition become a servant of the Crown.
When this matter was raised in Committee I said that it was my firm view that the subsection was not in fact circular but that I was willing to agree to look at the matter again. As part of that process, my officials have sought further legal advice. That advice has reaffirmed the view that the subsection cannot carry the construction that noble Lords opposite have placed upon it.
Nonetheless, I accept that the present drafting leaves room for honest differences of interpretation, and that some legal experts whom the noble Earl, Lord Russell, has consulted support the alternative reading of the subsection. I think it would be most unfortunate to maintain an entrenched position over the drafting when the Government have never had any intention of using this Bill to delegate the determination of the terms and conditions of civil servants to people who are not Crown servants. My officials have therefore discussed this amendment with the representatives of the Civil Service trade unions, and I and the noble Earl, Lord Russell, have corresponded about it. I thus find myself in the happy position of being able to propose this amendment in the company of other noble Lords opposite.
The noble Earl, Lord Russell, has proposed an alternative formulation in Amendment No.3. If he will forgive me, it seems to me that his amendment is intended to have the same effect as Amendment No.2 but may not achieve the same unambiguous result, depending on how one reads it. That is of course a drafting detail. More importantly, I hope that the noble Earl will feel that Amendment No.2 offers a simpler route to the destination that we are all seeking, and that on that basis he will withdraw his Amendment No.3.
I believe that the proposed Amendment No.2 offers a simple and elegant solution to the worries that have been expressed and removes all possible ambiguity over the power afforded to Ministers to delegate yet retains the flexibility offered by the phrase "servant of the Crown". I beg to move.
Baroness Turner of Camden: My Lords, I thank the Minister for introducing an amendment which certainly improves matters and goes a good way to meeting the promises made at Committee stage. We

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on our side will argue that on its own we should like it to go a little further than that. That is why Amendment No.5 is before the House. I shall speak to that amendment later. However, in regard to this amendment we are very glad to confirm our acceptance of it since in the event it is the same as the one which we ourselves originally tabled.
Earl Russell: My Lords, I thank the Minister very warmly for the courtesy and care that he has devoted to correspondence on this matter during the Recess and for taking seriously a misgiving which he himself did not share about the interpretation of the clause. I have no idea which of us was right. The amount of case law on the matter is not sufficient for any of us to be sure about it. But the wording now proposed is satisfactory. I welcome it and assure the Minister that I do not intend to move Amendment No.3.
On Question, amendment agreed to.
[Amendment No.3 not moved.]
Earl Russell Earl Russell moved Amendment No.4:
Page 1, line 12, at end insert:
("( ) Notwithstanding subsection (2) above, no Minister of the Crown may delegate any function to which this section applies to an Officer of Her Majesty's Armed Forces without the prior approval of Parliament.").
The noble Earl said: My Lords, I put forward this amendment in a very tentative and exploratory spirit. Again it arises from the phrase "a servant of the Crown". In Committee the noble Earl explained that it covers civil servants, members of the diplomatic service, members of the armed services, members of the Forestry Commission and a few other specified individuals.
In certain circumstances powers are and should be delegated to members of the armed services. The Minister gave the example of the head of the National Hydrographic Survey who at present is, I understand, an admiral. That seems to me to be thoroughly appropriate. There is no disagreement whatever between us so far as I can see on what the Government at present intend to do.
On the other hand, we legislate for future generations. On occasion we legislate for future centuries. As it stands, the Bill authorises the delegation of management functions to members of the armed services in any circumstances whatever. I appreciate that there is a limiting force in the words "management functions". I look forward to what the Minister will say on the strength of that limitation.
However, I still wonder, and some members of the armed services may also wonder, whether this provision is perhaps a little sweeping and whether for the sake of future generations we might think of some rather more tight limitation. I am not sure whether the limitation that I propose is the right one or whether indeed it is technically feasible. I should very much like to hear the Minister's thoughts on this subject. I beg to move.
Baroness Turner of Camden: My Lords, my name is not attached to the amendment but it seems to me that there is some merit in it. I should not have thought that it would he so difficult to obtain the prior approval of Parliament before arrangements were
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made to delegate to members of the armed services. That is what I believe to be the intention of the amendment.
I do not know whether the noble Earl will want to press the amendment this afternoon but I too would like to hear what the Minister has to say about it. The amendment as worded provides an additional safeguard of possible parliamentary scrutiny. From that point of view, I believe that the amendment has merit.
Lord Boyd-Carpenter: My Lords, I do not at all like the amendment. It appears to discriminate against members of Her Majesty's forces. No justification has been brought forward for so doing.
There is also a question of drafting. As I read the amendment, the limitation applies only to delegation to officers of Her Majesty's forces. Apparently it would not operate in respect of other ranks.
Earl Howe: My Lords, I am grateful to the noble Earl, Lord Russell, for having written to inform me that this was a matter of some concern to him. The noble and gallant Lord, Lord Carver, who I understand is unable to be present today, has also written to me on this question.
I have to say, as I said in my written reply to the noble Earl, that I do not see a real danger here. That belief is based on the fact that the Bill is of very narrow scope. It seems to me that I can allay the concerns expressed by the noble Earl if I can demonstrate why the scope of the Bill is so narrow, and, specifically, if I can reassure him as to precisely what is meant by the management of the home Civil Service. I believe that I can do so.
The powers about which we speak when we refer to management functions are essentially powers to determine the terms and conditions of service of civil servants. I refer to such factors as pay, allowances, hours of work and so on. Furthermore, this part of the Bill relates only to the management of home civil servants and to a narrow range of powers which have at some time been the subject of Transfer of Functions Orders and which, for that very reason, cannot at present be delegated. Those functions can be found in the Minister for the Civil Service Orders 1968 and 1971 and the Transfer of Functions (Minister for the Civil Service and Treasury) Orders 1981,1987 and 1991. Any future TFOs transferring these powers between the Treasury and the Minister for the Civil Service will also fall within the scope of the Bill. But again those will relate only to that narrow range of powers originally subject to the Royal prerogative which have been delegated to the Treasury through Orders in Council.
Those are clear and real constraints. The Bill therefore cannot be used as a vehicle to enable Ministers to transfer other powers from civil departments to the military. Still less is it a possible instrument for the introduction of a military government.
Members of the Armed Forces already exercise as chief executives of a number of Ministry of Defence agencies management responsibilities for members of the Civil Service. The Bill simply offers more of the

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same. Its effect will be to allow the central departments to delegate fully to such service personnel Civil Service management functions which they currently exercise within discretions. In other words, the Bill does not and cannot create any extraordinary precedent or major constitutional departure.
If there were to be any scope for the transfer of major government functions to the Armed Forces, I should be the first to agree that parliamentary scrutiny was essential. But, given that service personnel are already managing civil servants in appropriate areas, I do not feel that an amendment could be justified which requires separate parliamentary sanction before delegating these limited powers. Such members of the armed services are holding positions to all intents and purposes identical to those of their Civil Service counterparts.
All else apart, this would raise the spectre that if a civil servant agency chief executive were to be succeeded in the same post by a military officer, Ministers would need to return to Parliament to sanction the delegation which might already be in existence; and that cannot surely be necessary. I hope that on that basis the noble Earl will be content not to press his amendment.
Earl Russell: My Lords, I thank the noble Lord, Lord Boyd-Carpenter, for drawing attention to the drafting defect in the amendment. The point is well taken. I assure him that there was no intention whatever of discriminating against members of the armed services except only in so far as their skill is necessarily to some extent different from that of members of the home Civil Service. In the cases to which the Minister referred, where their skills are appropriate to the task in hand, the position appears to be entirely suitable. I had discussions before tabling the amendment. If I had had any reason to believe that the amendment might be mistaken I would not have tabled it. I hope that the noble Lord, Lord Boyd-Carpenter, will accept that assurance.
I listened with great care to the Minister. His key point relates to appropriate functions. I considered long and hard about whether I could draft an amendment which defines appropriate functions. I certainly cannot; I do not know the Government's mind well enough. I believe that the Minister himself would face quite severe technical difficulties in so doing. I feel a great deal of sympathy with that; I should not like to have to find a way through.
I found reassuring the points made by the noble Earl about limitation of management functions and the limitation of the purposes of the Bill. I am grateful to him for making them. I am grateful to him for correspondence on this matter. The answer is satisfactory so far as the nature of the matter permits. I am happy to beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No.5:
Page 1, line 17, at end insert:
("( )When exercising the power conferred by subsection (2) above a Minister of the Crown shall identify the person to
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whom the delegation is made, and, in particular, shall do so by reference to the position which that person occupies in the service of the Crown.").
The noble Baroness said: My Lords, the amendment attempts to tie down what has already been agreed by the House in Amendment No.2. Your Lordships will recall the furore that arose when the Bill came before the House at Second Reading. It appeared in the wake of statements by the Secretary of State, made elsewhere and widely reported, that the Government were about to embark upon wholesale privatisation of the Civil Service. There had been no prior consultation with the unions and, naturally, there was enormous concern.
We were advised by the Minister that there had been a total misunderstanding: that this was a technical Bill which could not be used as a vehicle for wholesale privatisation. We complained about the lack of consultation. I understand that there has now been consultation with the unions concerned. I am grateful to the Minister for that and for the assurances that he has given today.
Nevertheless some suspicions remain. The amendment before the House today is intended to ensure that when the Minister of the Crown makes the delegation he identifies the person to whom the delegation is made by reference to the position which the person occupies in the service of the Crown. I believe that the Minister may well tell the House that that is unnecessary and that it is implicit in the first amendment which has been adopted and in the meaning of the word "delegation" that the Minister must specify the person to whom delegation is made.
However, we do not see why that should not be made more specific in the legislation. As I said, the Bill has aroused an enormous amount of suspicion, largely due to the way in which it was originally handled by the Government. We have now accepted the assurance that the Bill is not a blueprint for wholesale privatisation, as we originally had suspected, and that it is not intended to use it except to ensure delegation of management functions actually within the service. Therefore, why not make that absolutely clear and allay the suspicions altogether? I beg to move.
Earl Howe: My Lords, the noble Baroness has explained clearly the intentions behind the amendment. However, I fear that it is not an amendment the Government feel able to accept. That is not because we do not wish the Bill to operate much in the way that the noble Baroness has suggested; it is because the amendment is neither necessary nor helpful. As I explained when proposing Amendment No.2, the drafting of Clause 1(2) was referred for further legal advice in the light of the objections made to the phrase,
"of such description as he may specify".
The subsection as it stood was drafted in such a way as to make it clear that the maker of the delegation could identify the servant of the Crown to whom the delegation was to be made—for example, a chief executive or a Minister—by the title of his or her office. The resultant drafting of this subsection, of

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course, then created concern among some noble Lords that the result was something other than that which we had intended.
The view of our legal advisers is that, on reflection, Amendment No.2 is sufficient to render such a requirement redundant. They have pointed out that it is clear that a Minister exercising the power of delegation in subsection (2), as amended, must by definition specify the person to whom it is made. No Minister could or would say, for example,"I delegate the making of arrangements for probation in the Civil Service", and then stop short. He would have failed to have delegated, as required in the amended subsection (2), to anyone. That would be abrogation and not delegation. Nor could he say,"I delegate the power to determine working hours to any civil servant". No-one would know for what they were responsible.
By remaining silent on the question of specification the Bill offers Ministers the alternatives of identifying a recipient of a delegation directly (that is by name); or indirectly by specifying a description which only he fits such as the "Chief Executive of the Benefits Agency". Both of those methods of identification are clear and straightforward and can create no doubt as to where the delegation has gone.
By contrast, this amendment lays a duty upon the Minister making the delegation to identify the recipient only indirectly by a description of the position which that person holds in the service of the Crown. I am not sure that I see the advantage which is thereby gained. Although I do not disagree that in most cases it will be more helpful to identify a recipient in this way, rather than by name, there may perhaps be circumstances in which a delegation might ideally be made a named Crown servant who has a particular and temporary duty to perform. This amendment as drafted would prevent such an approach.
I hope, therefore, that the noble Baroness will agree that it is not sensible to introduce a further subsection covering matters which are, I am firmly persuaded, already adequately covered in the Bill and that she will agree to withdraw the amendment.
Baroness Turner of Camden: My Lords, I thank the Minister for that full explanation. I am glad to hear that the intention behind the amendment is accepted by the Government, even though they cannot accept the way in which we have gone about it. In those circumstances, I beg leave to withdraw the amendment. I shall look carefully at what the Minister said, which has been helpful, and I thank him.
Amendment, by leave, withdrawn.
Viscount Goschen: My Lords, I beg to move that the House do now adjourn during pleasure until 4.20 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 4.3 to 4.20 p.m.]

BCCI: Bingham Report
The Minister of State, Department of Transport (The Earl of Caithness): My Lords, with the leave of the House, I shall now repeat a Statement made in
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another place by my right honourable friend the Chancellor of the Exchequer. The Statement is as follows:
"Madam Speaker, the collapse of BCCI was a severe blow to many thousands of depositors all over the world. It was the result of a fraud unparalleled both in scale and cunning. Many honourable Members have seen the problems it has caused and is still causing to businesses and individuals alike although I am pleased to report that approaching 9,000 payments have now been made to UK depositors under our deposit protection scheme.
"It was against this background that I decided, with the Governor of the Bank of England, to ask Lord Justice Bingham to carry out a full and rigorous inquiry into the conduct of the authorities that supervised BCCI.
"Lord Justice Bingham had access to all the material he needed from the Government and the Bank. Nothing was withheld. Much of this was confidential and the inquiry was held in private to avoid any prejudice to criminal proceedings and to encourage witnesses to give evidence.
"Since receiving the report, I have had to weigh carefully the public interest in maintaining that confidentiality against the public interest in disclosure. After taking legal advice, I have concluded that the balance lies in favour of publishing Lord Justice Bingham's report unamended and in full but without the supporting appendices. Once honourable Members have had an opportunity to digest the report, there will be a debate in government time in this House.
"Madam Speaker, Lord Justice Bingham's terms of reference were:
'To enquire into the supervision of BCCI under the Banking Acts; to consider whether the action taken by all the UK authorities was appropriate and timely; and to make recommendations'.
"Accordingly, his report does not attempt to describe the full story of BCCI's activities, nor does it seek to judge how overseas authorities, the directors of the companies, or the auditors, carried out their duties. What the report does provide, Madam Speaker, is a clear and thorough account of the role of every official UK authority which had any involvement in the affairs of BCCI.
"Madam Speaker, Lord Justice Bingham concluded that the conduct of Treasury Ministers and officials was not, in his view, 'open to criticism in any respect'.
"However the main focus of the report is banking supervision. With the Banking Acts of 1979 and 1987, Parliament placed responsibility for banking supervision on the Bank of England. So the bulk of the report deals with the way the Bank discharged its responsibilities from 1972, when BCCI opened its first branch in London, to its closure last year. It may be helpful to the House if I summarise briefly the report's main conclusions.
"First, I should make clear that the closure of BCCI was instigated by the Bank after it had

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received a report last June from the auditors which revealed the largest fraud in banking history. Responsibility for that fraud and the consequent losses rests squarely with those criminals who devised and carried it out. They are being pursued by the authorities in a number of countries.
"Secondly, BCCI's opaque group structure was established before there was a statutory system of banking supervision in this country. The report accepts that a bank established today could scarcely hope to assume the form it did or last so long.
"But Lord Justice Bingham is critical of a number of judgments made by the Bank over the years. He argues that the Bank was slow to impose on BCCI an appropriate supervisory regime, and he concludes that the Bank continued for too long to rely on the Luxembourg authorities to play the leading role.
"Next, the report concludes that communication between supervisors, auditors, and shareholders was not as good as it should have been. The Bank did not grasp the scale of the fraud that the majority shareholders and auditors had uncovered until it received Price Waterhouse's report in June last year. The report came as a surprise to the Bank, but Lord Justice Bingham argues that it should not have done.
"He concludes that it would not have come as a surprise had Price Waterhouse more plainly and comprehensively brought the various elements of the fraud to the notice of the Bank as they emerged; or had the majority shareholders made a full and timely disclosure of all the facts known to them. But Lord Justice Bingham also concludes that the Bank itself should have been more alive to the significance of those messages it did receive and that it should have pursued the leads it was given more vigorously.
"Turning to the summer of 1991, he concludes the Bank's action in closing BCCI was an appropriate course of action, as was its decision not to give effective advance notice to the majority shareholders. In his view, all the options were unattractive and the Bank had to act on its judgment of what was in the interests of depositors.
"Madam Speaker, some wild allegations have been made—both in this country and abroad—in the last 18 months about the Bank's role in this affair. Lord Justice Bingham's report shows that there was no duplicity or bad faith; the Bank was party to no conspiracy and to no cover up. Nonetheless, he concludes that mistakes were made and that in certain respects the Bank's supervision was deficient. That is a matter of very serious concern and I am determined that all the lessons from this case should be learnt.
"It is to the key question of how to make the supervisory system more effective in the future that Lord Justice Bingham turns in the final chapter of his report.
"He does not call for any radical recasting either of UK legislation or of the international framework
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developed by the G10 countries. Nor does he find any substantial flaws in the new regime for banks within the European Community which comes into effect next year. He believes that the Bank's traditional supervisory techniques have generally served the community well and he does not recommend any change in their responsibility for supervision. Nonetheless, he makes a number of recommendations for strengthening our current arrangements. The Governor and I accept them all.
"First, we must ensure transparency of structure. Lord Justice Bingham says that the most important lesson of the affair is that banking group structures which deny supervisors a clear view of how business is conducted should he outlawed.
"To put the position in the UK beyond doubt, I will introduce legislation to give the Bank explicit powers to refuse or revoke authorisation of banks whose supervision is obstructed by a complex structure, or by undue secrecy in the financial centres in which they operate. In Europe, I will urge our Community partners to agree that similar powers should be taken by all banking supervisors; and we will press for the adoption of similar standards more widely.
"Next, we need better communication and co-operation between supervisors internationally. Few substantial banks now operate only in one country, or even on one continent. It is vital that all the supervisors concerned with a single group should communicate openly, co-ordinate their efforts, and should impose similar standards.
"The latest Basle Concordat is an important step forward, as is the Community consolidated supervision directive. But we need to go further in clarifying the arrangements for exchange of information internationally. We will ask our European partners to look again at the confidentiality provisions of the banking directives to ensure that they do not impede the exchange of information between supervisors and other authorities. We will also propose a system for reviewing supervisory standards within the Community and more widely.
"But it is not just a matter of co-operating internationally. An increasing number of banks form parts of wider financial conglomerates; fraud is by no means confined to banks. So we must also ensure that all the different authorities at home that are responsible for deterring, investigating, and prosecuting fraud work together to greatest effect. I am therefore establishing new machinery within the UK to strengthen communications and co-operation between supervisors and all the other relevant authorities.
"Fourthly, BCCI has emphasised how vital it is that auditors should speak plainly and freely to the Bank. Hitherto, their duties have been laid down in professional guidance. Lord Justice Bingham has concluded, as did the Treasury Select Committee, that it would be better for the duty to be a statutory one. I accept that conclusion. I have decided that a similar approach would be appropriate for financial services and building societies and the

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President of the Board of Trade considers that it should also be extended to insurance companies. The necessary consultation with the professional auditing bodies and others on the formulation of such a duty and its enforcement will be taken forward urgently.
"Finally, Lord Justice Bingham concludes that it would be a mistake to respond to BCCI by intensifying supervision of all banks. The overriding need is to ensure that the supervisors' attention is concentrated on suspect banks and that, where appropriate, vigorous action is taken. The Governor and I take very seriously the criticisms of the Bank. So the Governor is announcing today important organisational changes and a strengthening of his supervisory team. A special investigations unit and a legal unit are being set up; as recommended by the Select Committee, the Bank's capacity for on-site examination is being strengthened; greater use will be made of the Board of Banking Supervision which brings outside expertise to bear on the Bank's work; and training for supervisors is being enhanced.
"Madam Speaker, an effective system of banking supervision is essential to any advanced economy. It cannot eliminate risk, but it can make bank failures less likely and frauds more difficult. In that way it sustains the confidence on which sound banking, and the economy more generally, depends.
"BCCI was not typical in any respect, but its failure has caused great damage and distress. It was important to review the UK authorities' role in the affair dispassionately and thoroughly.
"I am sure honourable Members will join me in thanking Lord Justice Bingham for producing a masterly account of a complex subject. He has not hesitated to make criticisms where he considers them appropriate, and he has been constructive in his recommendations for the future. The Government are determined to learn all the lessons from this unhappy affair. We accept all the Bingham Report's recommendations and we will pursue them vigorously".
My Lords, that concludes the Statement.
4.33 p.m.
Lord Peston: My Lords, I thank the noble Earl for repeating the Statement of his right honourable friend the Chancellor of the Exchequer. The short interchange we shall take part in today will be no substitute for a full debate on the report based on a careful, considered reading of it. It is a matter which your Lordships are well qualified to debate, on which we have a great deal of expertise and—dare I say it?—perhaps even more so than the other place. I understand that the Government have committed themselves to a full debate in the other place. I hope that the usual channels will hear my remarks that we equally require a full debate and one that is not too long delayed.
As your Lordships will see, I shall be extremely critical of the Statement as well as the report—in considering the matter, we should remind ourselves
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that we are discussing the largest fraud in the history of banking. We are not discussing a minor matter; it is the largest fraud in the history of banking. As I understand it, the bank was involved in drugs trafficking, illegal arms sales, financing of terrorists, in prostitution, and much more. The list is endless. All that was going on for many years and it was going on under the nose of the Bank of England which was referred to in the report in rather mild terms to say the least.
I received the report only a short time ago. I have dipped into it. It contains a great deal of factual material of a useful nature. But I for one find it impossible to move from what is known to have taken place to the conclusions, let alone the rather complacent Statement we have just been given. I must warn the House therefore that when we come to debate the matter more fully we shall need to be a great deal more vigorous than the Government seem to wish to be. Therefore in joining the noble Earl in welcoming the work of Lord Justice Bingham, and in looking forward to reading every word of his report—and while showing all due deference to Lord Justice Bingham—I do not believe that that requires us necessarily to accept his conclusions either in whole or in part.
When the noble Earl replies to the questions which will follow, perhaps he can refresh my memory on one point. I seem to recall that when we received the Statement on setting up the inquiry, we were told that not only would we be given a report, but we would be given also—except for one or two commercially sensitive matters—all the evidence. I understand that the report before us is all there is. I was in touch with the Printed Paper Office to ask whether there are other volumes and I was told that there are not.
I am puzzled by that. We are told that we receive the report unamended and in full but without the supporting appendices. Perhaps the noble Earl can tell me what the supporting appendices are. Specifically, do they contain all the evidence? If so, perhaps I can be reminded why, except for one or two matters that may be commercially confidential, we are not allowed to see all the evidence. That is an extremely important point.
My next query concerns the extraordinary statement that,
"the conduct of Treasury Ministers and officials was not, in his view, open to criticism in any respect".
I can only say that apart from what we know was happening, a quick glance through the report suggests that that is an impossible conclusion to reach. For example, it is perfectly clear that the famous case which alerted people to certain worries in regard to the bank—namely, the prosecutions for drug trafficking in Tampa, Florida—were well-known to the Treasury. That is actually documented in the report. When one knows that drug trafficking is happening and that a bank is involved, is one not open to criticism if one does nothing about it? What are we coming to when that is thrust aside on some kind of technical ground?
There are many other examples. It certainly eludes me how it can remotely be said that Treasury officials

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and Ministers are not open to criticism "in any respect". Those are the words in the report. I should like to hear the noble Earl comment on that aspect.
My next point is to query the role of the Bank of England in the matter. I do not believe that we can let the Bank of England off the hook. We are told that the Bank did not grasp the scale of the fraud, and so forth. But what does that mean? Are we being told that they did not grasp that any fraud was taking place? Are we being told that they did not realise they were dealing with terrorists and crooks or that the fraud had to reach a critical level before the Bank of England could possibly think of acting? I find that extraordinary.
The remarks made in the report that attempt to move the burden on to Price Waterhouse and the auditors as though that were the central question are not attractive. Looking briefly at the report and more deeply at the Statement, we seem to have a Treasury which is ultimately responsible. The Bank of England is certainly directly responsible. But they are both passive. They sit there waiting for something to come to them and that is their concept of supervising a bank involving the largest fraud in banking history.
I feel too that the Government's position is somewhat contradictory. The Government said that they do not need any major recasting of legislation. But if the legislation is right, it can only mean that those who use it failed us. It means that the Bank of England failed us. I should like the noble Earl to comment in that regard.
I draw your Lordships' attention to the comment that we need "better communications and cooperation". That is not what this is about. It is about a major failure of the Bank of England to deal with the biggest fraud in history.
That leads me to what must be a central question. We are told that the Governor and the Chancellor of the Exchequer take very seriously the criticisms of the Bank. But, as I understand it, their idea of taking criticisms seriously is to introduce some organisational changes and to strengthen their supervising team. Taking it all seriously does not seem to involve anybody resigning or getting the sack. I ask the noble Earl whether the Government asked for the resignation of the head of the banking supervision department of the Bank of England. Was that matter raised? After all, he is the person directly responsible.
I ask the next question in the way that I do because we must not consider the issue in terms of personalities. Has the Governor of the Bank of England been asked to submit his resignation? Ultimately, the responsibility for supervision in this case lies with him. Clearly we cannot disguise the fact that something went seriously wrong. I have to repeat the point: we are not discussing here a minor matter but the biggest fraud that has ever occurred. We are told that as a result of it the Governor of the Bank of England is thinking of reorganising a little part of his department.
I hope that I have got the point across. I am somewhat dissatisfied both with what happened and a fortiori with what the Government seem to wish us to do in terms of a response. The preface to my copy of
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the report by Lord Justice Bingham is dated July 1992. I take that to be the date when this report was given to the Chancellor of the Exchequer. Therefore, the Government have had August, September and October to deal with this matter. They seem to have made a damp squib of a Statement after three months. To be told that what is going to happen will happen in the future is not good enough.
In particular, I refer to a matter not mentioned in the Government's Statement and, as far as I can see, it is not in the report; namely, the allegations in the Senate Report on these matters. I would like to believe that what I have read in the newspapers of what the Senate sub-committee said about the Bank of England and our role is not true. In order to believe that I would have liked to have seen a direct rebuttal of everything that the Senate said, because its criticisms are even stronger than my own. I am rather disappointed that the Government have not felt able to say anything about that. Therefore, I ask the noble Earl whether we can expect to hear more from the Government on all of these issues.
In the end, one's concern comes down to the detail and we shall have to come back to that. I refer to the detail of what the Bank of England knew and when. What was the Bank of England trying to do? Was it more concerned about protecting, as it were, the owners than about anything else at all? What kind of supervisory place is the Bank of England if it does not get itself triggered into action immediately when it finds itself involved with drugs, money laundering and such matters, none of which it could possibly have been unaware of?
There are many more matters that I could raise. I find the Statement unsatisfactory. For the moment I am not in the least happy about the conclusions which the report draws. However, having said all that, I believe that I should pause in the hope that we can come back to this matter in the very near future so that we can really scrutinise the issues. I also hope that more than one or two heads will roll.
4.45 p.m.
Lord Bonham-Carter: My Lords, I too would like to thank the noble Earl for repeating the Statement made by his right honourable friend in another place on this serious and complicated matter. As the noble Lord, Lord Peston, has said, we are certainly in no position this afternoon to deal with the major matters raised by this report in a short period of question and answer. Neither have I had an opportunity to read the report or even to leaf through it. Therefore, it seems to me extremely unwise to come to any conclusions about it at this stage.
I welcome the fact that the report is to be published in full. Like the noble Lord, Lord Peston, I would like to know whether the evidence is also to be published. That would make it much easier for us to assess the report if it were also available to us. I assume that there will be an opportunity in your Lordships' House to debate the report in full in government time, which is the proper time at which to come to conclusions and to make substantial criticisms should they be warranted.

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However, there are one or two questions which I should like to put to the noble Earl and to which I hope he will be able to provide answers. The first and perhaps most urgent one is whether individuals and local authorities who have suffered as a result of this massive fraud will receive compensation. Quite reasonably, in the past it has been the practice that central government did not compensate local authorities for losses on investments of one kind or another for the excellent reason that they should be responsible for those losses.
However, where there is a question of incompetence or negligence on the part of an organ of central government, it seems that there is good reason for that principle to be abandoned. Indeed, the Treasury Select Committee argued on those lines some time ago. It said:
"Exceptions to this principle [of no compensation] would only arise if it could be shown that central government had used its powers or authority to cause local authorities to make such investments, or that the Bank of England had failed to discharge its supervisory duties."
Therefore, it seems that this is a case where compensation of some kind is justified. If compensation is to be offered to local authorities, it should also be offered to individuals. I would like the noble Earl to reassure me on that point.
I welcome the fact that the auditors' duties are now to be made statutory. It is high time for this to be the case since it is clear from the Statement that a possible cause of the delay in investigating this fraud was the somewhat opaque advice provided by the auditors in question.
Those are the two points to which I would like answers this afternoon. Meanwhile, I would like to reserve opinion until I have had an opportunity to read the report and, I hope, the evidence.
The Earl of Caithness: My Lords, I listened with great care to what the noble Lords, Lord Peston and Lord Bonham-Carter, said. I most certainly disagree with the noble Lord, Lord Peston, saying that I had repeated a complacent Statement. It was certainly anything but a complacent Statement. It was a very serious analysis of a situation which led to the acceptance of all the recommendations made by Lord Justice Bingham.
The noble Lord, Lord Peston, said that there is no need to accept the recommendations in whole or in part; at the moment he was not minded to accept them. I know that he will read the report diligently and I look forward to hearing what his recommendations would have been.
The noble Lord raised the point of the Treasury being culpable. I remind him of what was said in the Statement. He will know better than I do that through the Banking Acts of 1979 and 1987 Parliament placed the responsibility on the Bank of England. That is why Lord Justice Bingham, having interviewed people and taken all the evidence, doubtless came to the conclusions that he did.
The noble Lord also asked about resignations at the Bank. That is a matter for the Governor himself who is in charge of the Bank. There is no question of the Governor resigning because, although Lord Justice Bingham makes a number of criticisms of
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particular decisions, he does not make any personal criticisms or recommendations that personnel should be changed.
The noble Lord also referred to the senator's report in America. It is known also as the Kerry Report. It is worth reminding the House that there is a substantial difference between the Bingham Report and the Kerry Report. Senator Kerry made no attempt to check his conclusions or allegations with the UK authorities, especially the Bank, or to ask for any evidence. Moreover, Senator Kerry had no access to witnesses and documents, unlike Lord Justice Bingham. I am therefore sure that it is right to look to Lord Justice Bingham's report as the right report in those circumstances.
I turn now to two points raised by both the noble Lord, Lord Peston, and the noble Lord, Lord Bonham-Carter. The first refers to the debate which, judging by the mood of the House, will be welcomed. I shall of course repeat to my noble friend the Lord Privy Seal exactly what the noble Lords said and I am sure that that is a matter for the usual channels. Both noble Lords asked about publication of the appendices. As I said in the Statement, my right honourable friend the Chancellor of the Exchequer has taken careful legal advice on this question and believes that it is clearly in the public interest not to publish more detailed material because it would prejudice criminal proceedings and the effective working of the supervisory system.
The noble Lord, Lord Bonham-Carter, asked about compensation. I can advise him that there is a UK statutory deposit protection scheme which pays compensation for sterling deposits with UK branches at 75 per cent. of the protected deposits under £20,000. The maximum pay-out is therefore £15,000. It excludes foreign currency deposits and deposits by other banks. The statutory scheme was triggered by the winding-up order made on 14th January. I can tell the House that, as at 19th October, some 8,827 payments had been made to the value of £51.7 million.
The noble Lord, Lord Bonham-Carter, also welcomed the acceptance by my right honourable friend the Chancellor of the Exchequer that auditors' duties should be made statutory. I thank him for that.
4.52 p.m.
Lord Boyd-Carpenter: My Lords, will my noble friend treat very seriously the request of the noble Lord, Lord Peston, for an early debate on this matter in this House? So often we are promised debates after a Statement of this kind but then a long time is apt to elapse before we hold them. This is an enormously important matter. As the noble Lord, Lord Peston, said, it is the biggest fraud, the biggest breakdown in our financial system, that there has ever been. It is important that your Lordships' House, which includes so many people with great experience in matters of finance, should have the opportunity of making an early contribution. Will my noble friend urge on the normal channels the need to take this matter early even if it involves disrupting nicely arranged programmes.

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Perhaps I may also ask my noble friend to remind us, because I do not have it clearly in mind, what criminal proceedings have so far been initiated in this connection? That is relevant because he gives those proceedings as a reason for not publishing the appendices which we would be interested to see.
Finally, perhaps my noble friend will tell your Lordships whether, in the light of the very poor performance of the Bank of England in this matter, any resignations in that direction have been tendered?
Lord Benson: My Lords—
The Earl of Caithness: My Lords, I apologise to the noble Lord. I was just making a note of what my noble friend said so that I could try to answer the three points.
With regard to the debate that my noble friend requested should be held urgently, he will know that I cannot make that decision. I shall pass on what he says to my noble friends the Lord Privy Seal and the Chief Whip.
With regard to proceedings, there have been a number of proceedings in the United Kingdom, Abu Dhabi, France and the United States. As regards the United Kingdom, the Serious Fraud Office investigation announced on 8th July 1991 has to date resulted in the arrest of three people and people in other countries have been charged. Perhaps I may deal with that matter more fully at another time which might help my noble friend.
With regard to resignations, so far as I understand it there have not been any.
Lord Benson: My Lords, this is a complicated report. A number of fair criticisms have been made and, as one would expect, a number of recommendations. In no sense do I minimise the deplorable conditions that have been disclosed. I want to ask one humble question as to whether we can remember to exercise a little restraint in the criticisms that are likely to be offered.
When there is collusive fraud by top management, it is almost impossible to discover it. It is greatly exacerbated when the concern operates all over the world and when money can be switched from one place to another at the drop of a hat and all traces of the movement either eliminated or fabricated with great success. This company was apparently domiciled in Luxembourg. Its owners appear to have been resident somewhere in the Middle East. I have never been able to find out from a study of the papers which first came before us where the seat of management existed.
On the whole, the Bank of England's record in its supervisory activities has been good. I speak with a little modest knowledge because I had some knowledge about it at the time. If the House knew the difficulties and frustrations that are suffered by the Bank in trying to get to the bottom of these transactions, it would perhaps show some slight trace of sympathy.
Therefore, all I ask is that, before we all give way to the bursts of criticism which are traditional on these
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occasions, we should bear those facts in mind and should remember that, unlike the Bank of England, we have the precious gift of hindsight.
The Earl of Caithness: My Lords, I am sure that the whole House listened carefully to the wise words of the noble Lord. I have tried to answer the noble Lord's questions on fraud from this Dispatch Box for many years. My noble friend Lord Boyd-Carpenter mentioned the expertise of the House in this matter. Perhaps the noble Lord, Lord Benson, has a greater knowledge of some of the complications that are involved than some of the rest of us. His words are well worth heeding.
Lord Bruce of Donington: My Lords, perhaps I may question the noble Earl a little further on his announcement that the appendices to the report will not be published. I understood him to say that there had been consultations with the Government's legal advisers and that the Government had decided that, in view of possible prosecutions, it would not be in order to have them published. I was not quite clear as to whether the legal advice received by the Government was to that effect or whether the Government themselves, after taking legal advice, had come to that conclusion. I would have thought that in general it would be difficult to arrive at any conclusions about the report without having some sight of the appendices. Surely, even though some of the appendices may not fairly be published on the grounds that it might prejudice subsequent trials that might conceivably arise, there would nevertheless be some appendices or some parts of the appendices to which those considerations would not apply. I invite the Minister to give some further consideration to the matter.
The report is set out most clearly and I should like to congratulate Lord Justice Bingham on the clarity with which he has expressed himself. However, surely any full consideration of the report which would enable us to arrive at a judgment as to its merits requires that we should have sight of as much material as possible. Will the Government reconsider that point?
I agree with the noble Lord, Lord Boyd-Carpenter, that this matter should be considered at the earliest possible date. On the other hand, while agreeing with the noble Lord, such consideration of those matters, particularly if the appendices do become available, would require a fair amount of study, taking a protracted period of time, before any Member of the House, let alone those who are professionally qualified, could come to some conclusion.
I shall add only one further point. Indeed, I have ventured to make this point before in the past. It did not need the Banking Act 1987 to give the Bank of England powers of investigation. Such powers have been in the Bank's hands ever since the passing of the 1979 Act. One would have to be satisfied that this is not purely a consideration of any breaches of the 1987 Act. I hope that the Minister will give these matters his urgent consideration with a view to providing the House with as much further information as the Government might consider it proper to provide.

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The Earl of Caithness: My Lords, I have listened with care to the noble Lord, Lord Bruce of Donington. I say to him, as I said to the noble Lord, Lord Benson, that I have answered a lot of questions on fraud and that I know of his concern and of his wish to improve the system both in this country and throughout Europe.
On the appendices, at this stage I can only repeat what I said in the Statement—that my right honourable friend the Chancellor of the Exchequer had to weigh carefully the issue of maintaining confidentiality against that of the public interest in disclosure. After taking legal advice, he concluded that the balance lay firmly in favour of publishing Lord Justice Bingham's report, which is self-standing and self-contained, unamended and in full, but without the supporting appendices. However, I take note of what the noble Lord has said and shall draw it to the attention of my right honourable friend.
Lord Elton: My Lords, did I correctly hear my noble friend say in about the ninth minute of his Statement that the Government are either intending or considering extending the statutory approach from the regulation of banking to the regulation of financial services—a declaration of such importance that I should have thought that it might be given more prominence? Many of us have regarded the self-regulatory system that has been applied to the financial services by the Financial Services Act 1986 as experimental in nature; the success of the experiment depending on the success of the various parts of the financial services sector developing wholly professional standards of their own. If I did hear correctly, can my noble friend tell us whether the experiment is to be abandoned in whole or in part and, if in part, which part?
Finally, if there is to be a statutory approach, will my noble friend note that that, too, deserves discussion in this House and that that discussion should not be obscured by or absorbed into that on the major question of banking, which was the principal subject of his Statement? If I have got it wrong, I apologise, but it is still an issue of which I hope the Government will take note.
The Earl of Caithness: My Lords, I think my noble friend has got it right. In the Statement I said that my right honourable friend the Chancellor of the Exchequer had decided that the statutory approach would be appropriate for the financial services and the building societies. Indeed, my right honourable friend the President of the Board of Trade considers that the statutory requirement should also be extended to insurance companies. I also went on to say that consultation with the professional auditing bodies and others on the formulation of such a duty and on its enforcement would be necessary. That work will be taken forward urgently.
Earl Russell: My Lords, may I ask the noble Earl and his right honourable friends to give some further thought to the points made by my noble friend Lord Bonham-Carter about compensation? Of course, we appreciate the point about the present level of the
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compensation that is available, but £15,000 is not very much money. I do not know when that sum was fixed—perhaps it was once bigger in real terms. For a private individual, however, it represents probably less than one-tenth of the value of a house and it is not very much even for a medium-sized business, while it is almost nothing for a local authority. This is not the best time to increase the number of business bankruptcies. One local authority has already been close to bankruptcy and the bankruptcy of a body bearing statutory obligations is likely to cause some confusion. There is, of course, force in the point that this cannot become a general rule. The question is whether the Government's agents discharged their regulatory duties sufficiently or whether there was, in effect, a lack of care which involves them taking, ex gratia, some share in the responsibility.
The Earl of Caithness: My Lords, many of the noble Earl's concerns are addressed in the Bingham Report and I am sure that he will wish to read it with very great care. I know that he will agree with me that, whatever the supervision, it cannot prevent a bank from failing. It was precisely for that reason that the deposit protection scheme was established to protect small depositors. It has been very helpful in this case. I understand the noble Earl's concern that the amounts of money should be looked at again to see whether they are appropriate. I shall draw that point to my right honourable friend's attention.
Lord Desai: My Lords, I agree with my noble friend Lord Peston not only that this was one of the biggest frauds which we know of but, more than that, about the fact that nearly three years before this happened not only was what happened in Tampa, Florida, public knowledge but it was also the subject of a Channel 4 documentary. There was a lot to suspect about BCCI. The Bank of England should have provided strong evidence to the effect that it knew something other than what the public had been talking about which led it to refrain from taking action. The Bank waited far too long before taking action and caused a great deal of damage.
I believe that that happened because the Bank's regulatory practices are old fashioned. It was regarded in the City as a nice, informal club. However, as a result of Big Bang and the emergence of the new global financial markets, although it may have the powers, the Bank no longer has the competence to discharge its duty properly. Perhaps we should consider whether the Bank's regulatory functions should be removed from it and placed somewhere else, along with all other financial services. Perhaps we should leave the Bank only with the duty to regulate the money supply—if it can do that properly.
The Earl of Caithness: My Lords, I listened with care to what the noble Lord, Lord Desai, had to say. Lord Justice Bingham had access to all the material and witnesses in a way that was designed specifically to ensure that nothing would be withheld from him, and he has written his report on that basis. The more I listened to what the noble Lord, Lord Desai, was

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saying, the more I took into account what the noble Lord, Lord Benson, had said. Perhaps it might be sensible to allow time for a little quiet reflection.
Baroness Flather: My Lords, I listened with interest to the Statement. As a lay person, I have been greatly surprised by the fact that no blame attaches to the Bank of England—it has discharged its duties perfectly properly—but that a considerable amount of criticism has then followed. That is most interesting to those who are simply sitting and listening. I have not had a chance to look at the report. Indeed, even if I had had the report in my hands, I do not think that I could have become any better informed in just a few minutes. However, it is interesting that no blame attaches, but a lot of criticism has been made, and that there are issues which are to be taken up through legislation.
The Minister stated that the BCCI was set up before the Banking Act. I am not sure whether it was set up before both the Banking Acts or one of the Banking Acts. If it was set up after the Banking Acts, then the bank should not have been set up. Does that situation mean that there are banks operating now which could behave like BCCI, and that the Bank of England has no duty to look into their affairs? If that is the situation, it is extremely alarming. I hope that any proposed legislation will ensure that existing institutions come under the same regime as institutions that will be set up after the legislation; otherwise, legislation would be pointless.
I was intrigued by the subject of suspect banks. What is a suspect bank? If all banks are not looked at, it is possible that the next report that we will be listening to will be stating that,"It was not a suspect bank and therefore we did not look at it. It is only after the collapse that we realised that we should have looked at it and that it was a suspect bank."
Many questions need to be answered and I hope that there will be a proper debate on this issue very soon.
The Earl of Caithness: My Lords, quite clearly, Lord Justice Bingham has made criticisms of the Bank and there are lessons to be learnt. That is why the Government and the Bank have accepted the recommendations made by Lord Justice Bingham and are taking steps to implement them.
I should like to say that it is not so much the fundamental nature of the system that is under attack; it is the way that it is operated. That is why Lord Justice Bingham has set out a number of recommendations which we have accepted, that will improve matters, so that we are not faced with a situation such as the present one.
Lord Lyell: My Lords, I should like to thank my noble friend for taking us so quickly through this report, which I have had in my possession for the same length of time as other noble Lords. Three paragraphs were not covered by my noble friend. Can he assist me with paragraph 3.28 on page 186? That refers to,
"the role of certain financial centres which offer impenetrable secrecy and tend, for that reason, to be favoured by those with something to hide."
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Noble Lords may have a great deal more to say about that matter when we debate the whole report.
Paragraph 3.41 concerns the duty of auditors to depositors. The last three lines of that paragraph go some way to giving us guidance. The noble Lords, Lord Benson and Lord Bruce, will be able to amplify that matter. If my noble friend would care to look at paragraph 3.47, I am sure that consultation and advice will be forthcoming from that sector.
The Earl of Caithness: My Lords, my noble friend will recall that I stated that my right honourable friend the Chancellor of the Exchequer would introduce legislation to give the bank explicit powers to refuse or evoke authorisation of banks whose supervision is obstructed by a complex structure or by undue secrecy in the financial centres in which they operate.

The High Court
5.15 p.m.
Lord Irvine of Lairg Lord Irvine of Lairg rose to ask Her Majesty's Government what action they will take to ensure that there are sufficient High Court judges to transact the business of that court properly.
The noble Lord said: My Lords, it is with particular pleasure that the noble and learned Lord, Lord Archer of Sandwell, Solicitor-General from 1974 to 1979, should have chosen to make his maiden speech in this House in the course of this short debate.
I ask this Question to call attention to two facts which I doubt are sufficiently appreciated. First, the principal cause of much of the delay in the administration of justice in the High Court today is that the Government will not appoint sufficient judges to transact the business of that court properly.
Secondly, the regular use of deputy judges as a substitute for full-time judges is not in accord with the statute that permits appointment of deputies as a-temporary measure only.
I should like to tell your Lordships about the undermanning of the High Court today. In the Queen's Bench Division the general pattern recently in actions tried by a judge alone—that is the great majority of cases in that division—is that most of them are tried not by full-time permanent High Court judges but by circuit judges or by senior QCs sitting as deputy High Court judges. There have been periods when as many as 10 deputies have had to sit because no more than three High Court judges were available.
Let us come to the present time. This term a very bad start has been made. In the week beginning Monday 5th October, four High Court judges sat; but the bulk of the business to which I have referred was conducted by two circuit judges, together with no fewer than six QCs acting as deputies, along with one retired High Court judge. In the next week the figure for QCs acting as deputies rose to eight; and from yesterday it had become nine QCs who were acting as deputies.
The prediction for January is that there will be no High Court judges whatsoever available to try cases such as important professional negligence claims or major breach of contract actions, which plainly

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require a High Court judge to try them. However, they will have to be tried by part-time deputies, assisted by one or two circuit judges.
I raise the question: is that situation lawful? I invite an unambiguous reply from the noble and learned Lord on the Woolsack. Is the next banana skin on which this Government may make an unseemly fall to be proceedings by a litigant in the High Court to whose case a deputy judge has been allocated, in which he demands a full-time professional High Court judge to try his case; or, on the contrary, will he be told,"You do not need to consent to a deputy judge but you can go away indefinitely and wait for your case to be tried by a full-time High Court judge"?
I invite the noble and learned Lord to acknowledge that there is what is well-known to the profession and not so well-known to the public: a regular and consistent use of deputy judges in the administration of justice in the High Court. That is the only way in which delays in the Queen's Bench Division have been reduced.
I also invite the noble and learned Lord to acknowledge that that practice is contrary to Section 9(4) of the Supreme Court Act 1981. That Act allows use of deputy judges as a temporary measure only. Does the noble and learned Lord not accept that the usage of deputies has in practice become a permanent one?
The temporary engagement of a senior Queen's Counsel as a deputy High Court judge whose suitability is being assessed for a permanent appointment to the High Court bench is one thing and is entirely acceptable. However, it cannot be denied that many deputies are regularly employed who have been passed over. It cannot be in the public interest that major cases in the High Court are regularly tried by deputies who have been considered but rejected for permanent appointment.
The single most important cause of delay in the High Court today is shortage of full-time judge-power. I am not making any party point. Let me quote the Lord Chief Justice, Lord Taylor of Gosforth, who will follow in this debate. He stated at the Lord Mayor's Dinner in July:
"We have at present a huge and growing workload. In the Court of Appeal Criminal Division and the Divisional Court the backlog is approaching crisis point. The number of conviction appeals received in the first half of this year is 26 per cent. up on the same period last year. Waiting time for non-custody appeals is up to a year and a half; even custody cases are having to wait many months. In the Crown Office list, waiting time for judicial review is 14 months and the present trend suggests that it could be 19 months by January of next year."
Today, the position is every bit as grim as that in judicial review cases. The citizen has three months only in which to apply for judicial review, broadly speaking, from the time of his grievance. The statutory reason for obliging the citizen to make his application so promptly is that good administration requires that these disputes be promptly resolved. But the justice system is kept so undermanned that it cannot resolve those disputes until after a delay of what I understand has now become at least 20 months. That must be a disgrace, particularly in this class of case.
The noble and learned Lord, Lord Donaldson of Lymington, sounded similar warnings in his retirement speech as Master of the Rolls at the end of July of this year. As I see him sitting in his place, and as he is shortly to contribute to the debate, I think that it is appropriate to record that no judge of his generation was a greater promoter of expedition nor a greater enemy of delay. The noble and learned Lord brought sad news in his retirement speech; namely, that the number of outstanding appeals to the Court of Appeal had risen from 989 at the end of the legal year in 1991, to 1,130 a year later. The difference in the two backlogs is sufficient to provide a whole year's work for one division of' the Court of Appeal. That, too, is a grim picture.
Perhaps I may now turn to the Chancery Division of the High Court. It too is under severe pressure. There is an ever growing volume of work, as bankruptcies and insolvencies soar. About 25 per cent. of the work of the Chancery Division is done by deputies, by senior QCs or by circuit judges. In this division, the waiting time for the trial of a case requiring more than three days of judicial time is now as long as 22 months. It is not a division which sends its judges out of London on circuit as does the Queen's Bench Division. So any argument that there may be—and I do not know whether it is so argued—that the problems faced by the Queen's Bench Division are attributable to its High Court judges going out of London on circuit cannot apply to the Chancery Division.
One High Court Chancery judge sits six months of the year in the North dealing with Chancery business, but, that apart, Chancery business out of London is dealt with by circuit judges. The Chancery Division always hives down to the county court work which can suitably be done at that level. So the regular use of circuit judges in the Chancery Division of the High Court is, by definition, to allocate to those judges business that should be dealt with by High Court judges. So, in that division, too, there are huge delays, with litigants waiting nearly two years for their cases to be heard, due to the shortage of High Court judge-power, despite the fact—as I have already said—that one quarter of the High Court business is being tried by non-High Court judges.
I should like now to spare a word for an important jurisdiction that it is very easy to overlook. I refer to the Employment Appeal Tribunal. It hears appeals from the industrial tribunals in unfair dismissal and redundancy cases, equal pay cases and sex discrimination cases. Its jurisdiction is vital, especially as we hover on the edge of a depression. The current figures are that 930 registered appeals are outstanding. The wait for those appeals to be heard will, on average, be two years. Again, what is needed is more judge-power. However, the appeal tribunal is doing its very best. The President, a High Court Judge, essentially sits full time, although he is seconded from the Family Division—to the disadvantage of that division. He has a back-up appeal tribunal chaired by another High Court judge, who is only able to sit 24 weeks in the year and he has another appeal tribunal chaired by a circuit judge, who is only able to sit 36 weeks of the

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year. In May they disposed of 22 appeals, in June,56, and in July,84, although those overall figures mask withdrawals of appeals and the varying difficulty of individual appeals which are actually heard. At the end of May there were 844 registered appeals outstanding; at the end of June,830; and, at the end of July,823. But now, in October, the backlog figure has grown to 930. So, despite its best efforts, with such judge-power as is available, the Employment Appeal Tribunal is faced with a backlog which is growing and not diminishing.
Let us consider the injustice. Usually, if the worker wins in the industrial tribunal, there is a stay of execution pending appeal. So, even if the tribunal has awarded compensation, he will not get a penny until after the appeal—two years on. But, generally, the industrial tribunals decide on liability only and postpone compensation to the subsequent hearing. In those cases, if and when the worker wins on appeal, two years on, he has to wait until another industrial tribunal hearing to decide his compensation can be arranged, and then no interest is payable despite the years of delay. Moreover, after all that passage of time, the options for the tribunal to order reinstatement, or re-engagement in a different job, become entirely unreal, especially in a deep recession. The appeal tribunal plainly needs two more High Court judges to clear the backlog and, especially in these times, it is yet a further disgrace that it does not have them.
When the noble and learned Lord responds, I hope that he can in terms acknowledge that justice obviously requires the appointment of many more High Court judges; and that, in the battle with the Treasury for the allocation of scarce resources, he will fight, and fight hard, the corner for which, as our Minister of Justice, he should fight hard—that of prompt access to justice. I trust that he will tell the House when he replies whether in fact he has any current plans, and what they are, for an overall increase in the size of the High Court Bench.
Finally, I should like to raise a matter of which I thought it right to give notice to the noble and learned Lord. Has there been any inquiry or review authorised by him into how High Court judges are deployed, so that he can be satisfied that the resources which High Court judges represent are most efficiently deployed? As a matter of fact, was there some kind of review or inquiry into that subject in 1991? What were its terms of reference and what was its result? Has such an inquiry or review been resumed this year? If so, what is its status, who are involved, when will it report and will there be a public statement? Further, does any inquiry that is being made impinge upon the future of the circuit system?
Your Lordships may think that those are important questions which should be answered in the name of openness: but I should make it plain that, whatever review may or may not be going on and whatever the particular answers to those questions may be, they cannot be an excuse for inaction. The noble and learned Lord will give nothing but disappointment if he fails to acknowledge that there is, here and now, an
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urgent need to add significantly to the current size of the High Court Bench—a need which, if not met, can only mean that justice will continue to be delayed and denied on account, and on account only, of government neglect.
5.30 p.m.
Lord Taylor of Gosforth: My Lords, this Question raises an issue of crucial importance to the administration of justice and, as Chief Justice responsible for the deployment of the Queen's Bench judges, it greatly concerns me. I know what the answer of the noble and learned Lord the Lord Chancellor is going to be. He has been kind enough to give me advance notice of it. It will be that a committee has been set up to conduct a review of the present deployment of High Court judges and to advise the noble and learned Lord and myself on that subject. That of course is factually correct.
However, the complete picture is that the noble and learned Lord has assured me that it is the Treasury which requires the review to take place, although not primarily to consider the question whether, and how many, more judges are needed. The Treasury, I am told, wants to have such a review regardless of our request for more judges. I am of course willing and happy to co-operate with my noble and learned friend on the Woolsack in helping to staff that committee and seeing that it produces its report as soon as possible. But I am bound to say that I agree with the noble Lord, Lord Irvine of Lairg, that the need for more High Court judges is plain and incontrovertible. That need has been stressed to the noble and learned Lord over a very long period, starting well before I took up office. Because extra judges have not so far been appointed in response to those requests, the situation described by the noble Lord has now developed and in my judgment amounts to a state of near crisis. I do not exaggerate.
It is a scandal that appellants should languish in prison for months awaiting their appeals which, if successful, will show that they should not have been there at all. I am determined to reduce the backlog of criminal appeals by sitting more divisions of the Criminal Division of the Court of Appeal, but that can be done at present only by withdrawing judges from other important work. In particular, heavy civil cases which the parties justifiably expect will be tried by High Court judges are presently often, and soon will most of the time, be tried by deputies or be postponed indefinitely.
Then there is another category of cases to which the noble Lord has referred which has high priority and in which present delays are intolerable. I refer to the field of judicial review in which administrative action is often frustrated or stultified if cases cannot be heard promptly. Indeed, by statute, as has already been observed, applicants for judicial review are required to make their applications promptly and, in the words of the statute,
"in any event within three months of the decision challenged".
That is precisely so as to avoid the frustration of administrative action. Presently the waiting time for judicial review cases makes that time limit seem

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absolutely absurd. The applicant has to get his application in at the latest within three months. He then finds himself, and so does the public authority that he is challenging, marking time for 18 months before the case can be heard. I am very anxious to reduce that backlog. Again, it can be achieved only be appointing more High Court judges, or using an even higher and more unacceptable number of deputies, or putting off litigants with lower priority for very long periods.
The paucity of High Court judges to try civil cases described by the noble Lord perhaps needs a little explanation. Your Lordships may say,"Why, in January, will there be no High Court judge to try High Court cases in the Queen's Bench?" It is not because they have all disappeared; it is because they are all committed to other work. There are six High Court judges in the Criminal Appeal Division of the Appeal Court, although I hope that there will be double that number in January. Judges are required to try heavy criminal cases at the Central Criminal Court; and judges are required to try the commercial list, and only High Court judges can try the commercial list by statute. It is not a field in which deputies can be deployed. There are judges to try the Crown Office list, which includes judicial review, and, as I have already indicated, I wish to increase the number of judges doing that. There are judges out on circuit trying heavy criminal cases not suitable to be tried by circuit judges; and if it be said,"Well, bring in the judges from the circuits and let the circuits wait a little longer if you have such a backlog in London", the answer to that is that the statutes which have been passed recently impose time limits on criminal trials which require that they come on in good time, and rightly so.
Then there is a judge who has to do judge-inchambers work. There is a judge in Admiralty. There are judges who have to do an increasing amount of work on the Parole Board. If one adds those all together it is no surprise to find that there are always, at best nowadays, two or three judges only to try the civil list. In January, as the noble Lord has said, there will be no High Court judges available.
I therefore wish to make it clear that whatever reception is given to the report produced by the Committee on Judicial Deployment to which the noble and learned Lord will refer, unless we have some more High Court judges appointed soon, even if it be not as many as we believe we need, the present situation will truly become a national disgrace and will be seen as such by the public. At the moment it is seen as such by those in close contact, but it will become apparent to all, through newspaper comment and the frustration of those whose cases are postponed indefinitely, that the system has almost broken down. Accordingly, I welcome the Question asked by the noble Lord which has enabled this matter to be brought to the attention of the House.
5.38 p.m.
Lord Archer of Sandwell: My Lords, as my noble friend Lord Irvine of Lairg so generously pointed out, this is the first occasion upon which I have been privileged to address your Lordships' House. For me
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it is a double first. There have been a number of occasions in my career when it has been a relief to know that the Lord Chief Justice agreed with my arguments. This is the first occasion when I have been able to say to the noble and learned Lord that, very respectfully, I agree with him.
The House will be grateful to my noble friend for drawing attention to this matter because it has repercussions on issues which are likely to arise in matters which the House may wish to debate next week. If in the course of this intervention I so far forget the conventions of the House as to trespass marginally into matters of controversy, I hope that I might call upon your Lordships' mercy.
My noble friend pointed out that there have been cases that Parliament considered to be of such importance as to merit the attention of a High Court judge which are now frequently being heard by deputy judges or by judges recalled beyond the age Parliament thought appropriate for retirement.
I do not suggest for one moment that most of those who sit in that capacity are incapable of dealing with unexceptionable fairness with the cases that come before them. But I venture to suggest that appointment as a High Court judge constitutes a guarantee that someone has been assessed as meeting the necessary standards. Silver which does not bear an assay mark may be of very high quality but assay marks were created for the purpose of certifying that someone has directed his mind to the question of certification.
I am bound to say that if I were a litigant and I was so unfortunate as to hear judgment given against me, even if I were not minded to query the vires under which the judge had been appointed, I might wonder whether, if my arguments had been addressed to a regular member of the judiciary, the outcome might not conceivably have been different. If one litigant goes away from the court with that feeling, and if the problem which gave rise to it stands unredressed, I suspect there may be others with that feeling and conversations on that subject will take place at parties, among members of families and in clubs. Gradually the reputation of the system will be scarred by a thousand cuts. I do not believe that that is the best way in which we can maximise public confidence in the High Court.
The other issue seems to me to be of even more fundamental importance. The system of government which we as students learnt from Montesquieu includes as one of its characteristics that the judiciary should be independent of the Executive in the sense that a judge has nothing to hope for from pleasing the Executive and nothing to fear from displeasing it. Of course that is a counsel of perfection and it would be unreasonable to argue that no one should ever be able, with some ingenuity, to invent a reason why a judge may derive some personal advantage by winning the approval of the Executive.
Sometimes High Court cases have to be heard by deputies. Aspirants to the High Court Bench whose ambitions are taken seriously will need to sit as deputies so the Lord Chancellor may assess their suitability. Sometimes the illness of a judge may

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require his replacement at short notice by whoever is available. But because some exceptions are inevitable it does not follow that we should embark upon substantial exceptions as a matter of policy.
All that is very different from calling on senior members of the Bar who are clearly not being assessed for appointment to sit week after week, month after month, at the discretion of the Lord Chancellor or possibly of one of his officials. Speaking for myself I should be grateful if the noble and learned Lord will tell us when he replies how often in the course of what must be one of the busiest lives in the country he is able to direct his mind personally to the issue of which deputies sit.
Of course I do not believe that the present noble and learned incumbent of the office is ever influenced by such considerations. I do not believe there have been many Lord Chancellors who graced the pages of Campbell who would have been so influenced. It is not many, if perhaps any, of the deputy judges of my own knowledge who would themselves be influenced by such considerations. I believe that the policy owes less to a conspiracy to subvert the constitution than to a conspiracy by the Treasury to administer justice on the cheap.
It is not when someone consciously embarks on the exercise of depriving subjects of their rights that freedom under the law is most endangered. If once it is perceived that the independence of the judiciary is no longer so highly valued as once it was, then freedom itself is to that extent endangered. If human beings never suffered lapses we would have no need of rules. Constitutions are required because occasionally someone gives way to a half-conscious temptation and because each lapse makes the next one less difficult.
The juridical culture and the constitutional rules which together protect us from tyranny are mutually reinforcing. As my noble friend said, if an exception designed to deal with an emergency becomes the norm, then part of the institutional safeguards are eroded. That in turn erodes the culture itself. In my work relating to human rights in a number of countries I have seen confidence in the judiciary, and the judiciary's confidence in itself, eroded because no one ventured to protest when the first safeguard was breached. That is a matter to which your Lordships may wish to return next week. It is the reason why I am grateful to my noble friend for ventilating the matter today.
5.45 p.m.
Lord Donaldson of Lymington: My Lords, first I congratulate the noble and learned Lord, Lord Archer of Sandwell, upon a maiden speech which I believe will be referred to for many years to come for the high degree of informativeness—if there is such a word—it displayed and for the trenchant terms in which it was delivered. We are all deeply grateful to the noble and learned Lord for his speech. I have no doubt at all that in the years to come his experience in another place gained during his five years as Solicitor-General and a
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further three years as shadow Attorney-General and his long experience at the Bar will be of immense value to your Lordships' House.
The noble and learned Lord, Lord Archer of Sandwell, asked the noble and learned Lord the Lord Chancellor a question. It is not for me to answer that question but I would not like there to be any misunderstanding as to how it comes about that Mr. X sits as a deputy High Court judge. As I understand it Messrs. A, B, C, D, E and F are listed by the noble and learned Lord the Lord Chancellor as fit to serve as deputy High Court judges. I do not know whether that is a personal decision of the noble and learned Lord. Once they are so certified it is a matter for the Lord Chief Justice or the President of the Family Division or the Vice-Chancellor to decide which of them will sit and which cases they will try. I regard that as a matter of great constitutional importance. The problem does not arise in the Court of Appeal where certainly it was my policy during the past 10 years—I have no reason to believe my successor will change it—only to use retired Lord Justices as deputies. They were, of course, by definition fit to serve unless age had in any way blunted their capacities. In those circumstances it was up to me tactfully not to invite them to help out. That is the way the matter should be dealt with.
In the light of the speech made by my noble and learned friend Lord Taylor of Gosforth, the points made by the noble Lord, Lord Irvine of Lairg—I am deeply grateful to the noble Lord, Lord Irvine, for having raised this matter—and the points made by the noble and learned Lord, Lord Archer of Sandwell, I can deal with this matter rather more briefly than I had intended.
One point that troubles me is that in 1988 the Civil Justice Review Body was faced with two conflicting concepts of how the system of justice should be organised. One view was that there should be a national court in which there were judges of High Court status or judges of greater capability and judges of County Court status or judges of perhaps lesser capability but they should all be judges of the national court. Cases were to be started in the national court and an appropriate judge would be allocated to each case. The review body considered that view and decisively rejected it. The case for keeping the High Court separate from the County Court was asserted to be, in large measure although not entirely, that if one had a national court one would totally erode the traditional authority of the High Court and that the respect in which it is held by government and by citizens would soon evaporate.
That view having been accepted by Government, and implicitly and to some extent expressly in the Courts and Legal Services Act of last year, we have produced a national court. One starts one's action in the High Court and it is a matter of administrative decision, based on the supply of judges available, whether one's case is tried as a county court case by a county court judge, by a Queen's Counsel who has never held permanent judicial appointment, or by a High Court judge. The only element of the concept of

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a totally independent and identifiable High Court which is retained is that the unfortunate litigant is expected to pay High Court fees for the privilege.
The question of the legality of what is happening has been raised. I hope that nobody will dwell overlong on that because I have a strong suspicion that it is illegal. It would take rather less time for my noble and learned friend the Lord Chancellor to decide that it was illegal and must stop than it would take to increase the statutory limit of High Court judges. Therefore the intermediate situation might be far worse than the present situation. That is certainly a factor which should be taken into consideration.
I have spoken of legality and of obtaining a national court by a side wind, contrary to the will of Parliament. Perhaps I may mention the question of judicial review, although it has already been mentioned. I have always had enormous pride in the ability of the High Court to act on behalf of the oppressed citizen, whether he is oppressed by a national authority or a local authority, or only thinks that he is oppressed, which may often be the case. The High Court steps in as a real citizen's charter and is able to redress the citizen's grievance promptly.
There was a time, in about 1980, when the delay in the High Court was virtually nil. That anybody should he asked to wait 14 or 18 months for redress for such a grievance is not only a scandal; it means that we have no judicial review court. It means that we have no effective administrative court in this country. That is a situation which I cannot believe my noble and learned friend the Lord Chancellor would be prepared to tolerate for one moment if he was able to do something about it. No doubt he will explain.
Criminal appeals also are a matter which must give rise to the greatest possible concern. We hear a great deal nowadays about miscarriages of justice. By that I think that the media mean cases in which it is said long after the ordinary judicial process has been exhausted that there has been a miscarriage of justice. I do not speak of such cases. I refer to miscarriages of justice which are inherent in any system and which the Court of Appeal (Criminal Division) exists to redress. There is no way in which we can avoid a small number of people being wrongly convicted and their convictions being set aside by the Court of Appeal (Criminal Division). There is no way in which we can avoid some judges giving what in the view of the Court of Appeal are excessive sentences.
What about the injustice to those people? Are they really to wait 18 months in some cases to have their convictions set aside? It is true that that figure applies to non-custodial sentences, but suppose a Member of your Lordships' House was wrongly convicted—and I am sure that if he was convicted at all it would be wrongly—and had to wait 18 months to have his name cleared, that would be intolerable.
There is also the dissatisfaction of civil litigants. I believe that that will have a spin-off effect on the work of the Civil Division of the Court of Appeal. While I do not suggest for one moment that the deputies are necessarily less capable of trying difficult cases than judges of the High Court, although by definition they ought to be, the real problem is that the litigants will
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not have confidence in them. They will want to appeal. Counsel will not have the confidence that they would in a High Court judge and will tend to advise an appeal. Therefore there will be a build-up of work in the Civil Division of the Court of Appeal.
I have been considering what possible explanation there could be for having allowed the situation to develop and to continue. I know that we live in hard times. Nobody could be under any illusions about that. However, the savings in cost are minimal. The greatest saving of all would come from using a county court judge. He does not have to be paid a penny piece; he merely does the work on the basis of his ordinary salary. However, the real cost to the public is quite different. It is that the county court judge, in his guise as a circuit judge, is not available to try cases which would otherwise be devolved to him under the system contemplated by the Courts and Legal Services Act. Queen's Counsel have to be paid—almost as much, if not as much, as a High Court judge on a pro rata basis. The savings in that case relate only to the pension contributions and the clerk. I cannot believe that it is an economic question which lies at the root of the problem.
I then wondered whether the Treasury was obsessed by the idea that these are long-term appointments and that if, by any inconceivable chance, too many High Court judges were appointed or there was a sea change in the way in which work was handled so that that number of judges was not necessary, one could never get rid of them. Of course one could never get rid of them, but natural wastage among the numbers we have at present, still less the numbers we ought to have, would easily overcome that problem.
So I am left with the explanation which was hinted at by my noble and learned friend the Lord Chief Justice; namely, that the situation is drifting on because nobody knows exactly how many High Court judges are required. I doubt whether anyone will ever know exactly how many High Court judges are required. However, one thing is perfectly clear without a working party, and has been made clear by the Heads of Divisions to the noble and learned Lord the Lord Chancellor over a long period: a very large increase can be justified on any basis whatever. So far as it is appropriate for me to call upon the noble and learned Lord the Lord Chancellor to do anything, I urge him to give us a payment on account, to bring forward an instrument whereby Parliament will raise the statutory ceiling to whatever extent is the minimum which conceivably could be justified and at a later stage top it up in the light of the findings of the working party.
I apologise for having taken up your Lordships' time.
5.58 p.m.
Lord Byron: My Lords, I should like first to join in congratulating the noble and learned Lord, Lord Archer of Sandwell, on his maiden speech, even though I do so as a mere novice in your Lordships' House while he was an experienced operator in another place.

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I must declare my interest in the debate. I am a solicitor, a partner in a City firm which does a large amount of international trade and is a major user of the commercial court in London. It is to the commercial court that I should like to address my remarks tonight.
Recently, the learned judge who now heads the commercial list, Mr. Justice Saville, drew attention to the problems in the commercial court. It is particularly unfortunate that, despite all the efforts and the hard work that has gone into the court over the years to get business up to date and avoid delays, we are now once again looking at a position where long delays are likely to occur. If I understand the position correctly, one judge from the commercial court retired during the summer and two judges were promoted to the Court of Appeal. None of those judges has been replaced.
It is a fact that almost all the cases that were listed to start in the commercial court at the beginning of this term will have to be postponed. That is partly due to certain very large and substantial overriding matters but it is also due to the simple shortage of commercial judges. Let me give practical examples. Two cases in which my firm are involved—there may be others, but I do not know—that were due to start this week have now, at short notice, had to be taken out of the list and witnesses who were due to fly into the country from various parts of the world have had to be put off. Such moves do a great deal of harm to this country's reputation and the reputation of our legal system. It is essential to understand the absolutely pivotal role of the commercial court for this country.
The times are such that no longer are most of my firm's clients English. They are French, German, Italian, Spanish or Japanese. Those people may not now have very much confidence in Britain to build their ships, produce their motor cars or make their clothes, but they still have confidence in our lawyers, our system of justice, our judges and our courts. But we cannot take that confidence for granted. It has been pointed out by many speakers before me that the presence of the commercial court and the reputation which it enjoys are of very great benefit and bring a great deal of business to this country.
If the time were to come when international businessmen, traders, ship owners or others ceased to make their contracts subject to English law and ceased to provide in their contracts for the jurisdiction to be that of the High Court in London, this country would lose an enormous amount of business. If the system breaks down, there is no doubt that the role of the City of London will suffer.
Last week I spoke on shipping and international trade to an international audience at a seminar. A number of people asked me what was now the position in the commercial court and how long they might have to wait for a hearing. It was difficult to give them very encouraging news. At one time one could take pride in the fact that the commercial court was very up to date and a hearing could be granted quite quickly.
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Unfortunately, that is not the case at the moment and the situation does not look likely to improve unless more commercial judges are appointed.
I do not want to occupy too much of your Lordships' time this evening. However, I must stress, without perhaps dramatising the situation, that if the international trading community abandons London as its chosen forum for resolving disputes, an enormous amount of ancillary business, whether legal, insurance or banking, will be lost. The danger is that it will be lost forever.
Every government must consider cost and benefit in public expenditure. But, if ever there were a case for very modest expenditure which would be of enormous public benefit to this country, surely the commercial court is such a case. I should be very pleased to hear my noble and learned friend on the Woolsack give his comments, in particular, on the position of the commercial court.
6.6 p.m.
Baroness Mallalieu: My Lords, I too am grateful to the noble Lord, Lord Irvine of Lairg, first for providing us with the opportunity to hear the maiden speech of the noble and learned Lord, Lord Archer of Sandwell, whose reputation as a law officer, parliamentarian and lawyer preceded him to this House. It was a pleasure and a privilege to listen to him. I am also grateful to the noble Lord, Lord Irvine, for giving me, as a criminal law practitioner, an opportunity to voice a great concern which I know is widely shared, enabling me to concentrate on the acute shortage which the lack of High Court judges is causing in the Criminal Division, where my own personal experience lies.
Two weeks ago I represented a young man accused of a murder which he was said to have committed in September 1991, when he was aged 18. Since that date he had been awaiting trial in custody. The case was reserved for hearing before a High Court judge at Reading. The date was fixed for trial at the earliest opportunity that a High Court judge would be available to try a five-day case (which is all that it would have taken). That earliest date was 5th October this year,1992. So, when his trial began, that young man had already spent 13 months in prison waiting for a High Court judge to be available. In other words, he had already served the equivalent of a sentence of more than two years.
During the trial it appeared at one stage that the jury might fail to agree and a retrial might have to take place. I was told that the earliest date that a High Court judge could be available was February 1993, which would have been 18 months from the date of the alleged offence and the equivalent of a three-year sentence served before trial. Luckily, that did not prove to be the case.
That example is by no means exceptional. Lengthy delays in serious criminal cases which are ready for trial, with defendants waiting in custody for a High Court judge to become available, are surely unacceptable on any view. In the Court of Appeal, Criminal Division, to which noble and learned Lords have referred, the same position is found. There are

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appeals against conviction, with appellants in custody ready for hearing but unable to be heard for periods of more than a year on occasion, as I know from Answers which the noble and learned Lord has given to my Questions for Written Answer, because there are insufficient High Court judges available to hear appeals any sooner.
The extent of that serious state of affairs within the Criminal Division has, I fear, been masked from the general public and the system saved from virtual collapse by the fact that, almost unnoticed, much of the criminal work of High Court judges on circuit has been shifted to the circuit Bench. Crimes that used to be regarded as sufficiently serious to warrant a High Court judge, crimes such as murder, manslaughter, rape and arson, are now being tried routinely by selected circuit judges—and usually, I stress, tried in an exemplary manner. The advantage to the Lord Chancellor's Department and the Treasury is, I have no doubt, that those judges perform the work of a High Court judge for substantially less pay.
Surely either the nature of the crime merits a High Court judge, in which case there ought to be sufficient of them available to try those cases and try them promptly—and those who are considered fit to try such serious cases should be sitting on the High Court Bench and paid accordingly—or it does not merit a High Court judge, in which case I must ask what my 18 year-old was doing, sitting waiting for 13 months for one to be available to try him.
Further, if there are insufficient High Court judges available to transact the business of the High Court, surely those cases which involve the liberty of a subject and in which a man or woman is deprived of liberty while awaiting a High Court judge's time must take priority and precedence over the other work of that court. I gather from the indications from other noble and learned Lords who have spoken that that may already be happening. However, I am bound to say that the results are not apparent from incidents such as that to which I have referred.
The gravity of the situation is further masked because, while the circuit judges are doing the work of the High Court judges, to supplement the shortage the work of the circuit judges is being done to a vast extent by part-timers—recorders and assistant recorders—as a look at the daily list of any of London's Crown Court centres, with the possible exception of the Central Criminal Court, almost invariably indicates. In my experience, centres with a substantial number of courts often have virtually no permanent, or what the public would see as "proper", judges sitting. The reason is all too clear. It is much cheaper to use part-timers who do not merit salaries or pensions.
Perhaps not surprisingly, the Lord Chancellor's Department has little difficulty in persuading the practising Bar to dance to its tune by staffing this judicial cost-cutting exercise. The vast majority of those who sit as part-timers will not in fact be in line for permanent full-time judicial appointment. Yet practitioners are told that it is their public duty to dedicate at least 20 sitting days a year for a fraction of a practitioner's remuneration, and sometimes even at a loss when chambers' expenses are taken into
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account, with the implicit threat that failure to do so may affect future prospects for applications for silk or eventual judicial office.
It is fortunate that so many recorders are prepared to give their time to keep the understaffed judicial system afloat. But surely experience, consistency and continuity must and do suffer from an itinerant and part-time judiciary. The public is surely entitled to a better service than one which is kept afloat by part-time volunteers.
My noble friend Lord Irvine of Lairg has today provided the noble and learned Lord the Lord Chancellor with an opportunity to accept that there is a great deal wrong with the present system. I hope that that opportunity will not be wasted. Instead of taking steps which appear to me to be aimed at discouraging suitable applicants for the High Court Bench, such as those which will come before your Lordships' House next week, I hope that we shall hear some positive proposals tonight as to how this serious state of affairs is to be met.
6.13 p.m.
Lord Ackner: My Lords, repetition is not the spice of debate and, following as I do the Lord Chief Justice, the former Master of the Rolls, two eminent Queen's Counsel, a very experienced commercial solicitor speaking with the authority of the judge in charge of the commercial list, Mr. Justice Saville, I shall pinpoint a number of limited points because so much has been covered.
First, perhaps I may turn to what I suggest is no technical point. It is the restricted power under which my noble and learned friend appoints deputy judges. It is to be found in Section 9(4) of the Supreme Court Act 1981. The material words are:
"If it appears to the Lord Chancellor that it is expedient as a temporary measure to make an appointment under this subsection in order to facilitate the disposal of business in the High Court or the Crown Court, he may appoint",
and it then reads on.
I read with great pleasure the speech which the noble Lord, Lord Archer of Sandwell, made almost 18 months ago at 4.30 a.m. in another place. He made the point—I am delighted that he was present to make it again tonight and I congratulate him on his maiden speech—that the reason for there being included those restrictive words "as a temporary measure" is because Parliament recognises, as it always does, how vital it is to the independence of the judiciary that they have security of tenure. By very definition, there is no security of tenure given to the temporary judge. With the greatest respect, that is why my noble and learned friend's powers are restricted to using this only as a temporary measure.
Over 18 months ago this point was again brought to my noble and learned friend's attention by one of our most able lawyers, the noble Lord, Lord Oliver of Aylmerton, in answer to a Question raised by the noble Lord, Lord Mishcon, on 15th July. He said this to my noble and learned friend:
"Will the noble and learned Lord explain to the House how the regular and consistent use of deputy judges under what I believe are the terms of Section 9(4) of the Supreme Court Act is reconcilable with the terms of that section which prescribe such action only as a temporary measure".

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I ask your Lordships to pay particular regard to the answer, which was in these terms:
"My Lords, I have a degree of difficulty with that question. However, it is a temporary measure. As my noble and learned friend Lord Oliver knows better than I—he has been closely associated with the High Court of Justice for much longer—this practice has continued for a long time. As far as I am aware it has had the effect of providing experience and qualifications to those who will ultimately attain the High Court Bench".—[Official Report,15/7/92; col.9.]
I make two points. First, it is the plainest admission by my noble and learned friend that there is being put into play at the moment, and has been for a great deal of time, what amounts to an abuse of power. The power given is very limited. It is being abused; and it is being abused in the manner that we have heard described. My second point relates to the reference which one frequently sees that it provides an opportunity for seeing to what extent the deputy judge qualifies for consideration for subsequent judicial office.
I obtained from the judge in charge of the list the names of the seven deputy judges who sat on 5th October referred to by the noble Lord, Lord Irvine of Lairg. I shall not give their names but I shall give their ages. It was to understand whether it is a training ground, as my noble and learned friend suggests. Number one was a High Court judge who will be 80 next year. I imagine that his period of training has ceased by now. Of the six QCs who provided that happy band of seven, four were over 65. As I understand it, that is long past the age at which the Treasury will ever permit a Queen's Counsel to be made a High Court judge because it is scared of the danger of having to pay him a pension within a short time of his appointment, overlooking the fact that, if one has managed still to be alive and a busy QC at 65, one is nearing indestructibility. Only two of the seven were under 65. Therefore the training ground relates to two out of the seven. With great respect, that seems to dispose of the training ground argument.
The next points which I am particularly anxious to make are quite short. They are these. Why should there be this dilution of the quality of the High Court Bench? When the Bar was small in number it used to be said that there would be difficulty in finding Queen's Counsel, and no doubt in the near future eminent solicitors, of sufficient quality to staff the High Court Bench. However, in the past 20 years the Bar has trebled in number. My noble and learned friend has the support of the previous Lord Chief Justice, who raised this matter in his speech at the Mansion House in July 1991. He also has the support of the current Lord Chief Justice for more High Court judges. They would not have made that request unless they were satisfied that there were recruits who would satisfy the position.
I end my diffident observations in the following manner. Your Lordships have been told that the administration of justice is in peril. It is obvious, and the former Master of the Rolls concurs with me, that there is every basis for saying that what is happening at present to keep the ship just above the danger of sinking is an abuse of power.
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My noble and learned friend the Lord Chancellor is the head of the judiciary. He occupies an immensely powerful and very senior position in the Cabinet. Perhaps it is naive of me but I cannot for the world understand why he is not in a position to say to the Treasury,"I have been told by the current Lord Chief Justice, by the former Lord Chief Justice and by the former Master of the Rolls that the administration of justice is in peril. What is happening at present amounts basically to an abuse of power. I insist on having more judges. You, the Treasury, have no business in any way to frustrate the requirements of the administration of justice".
6.22 p.m.
Lord Meston: My Lords, it is apparent that the noble Lord, Lord Irvine of Lairg, has raised a serious problem. The uncertainties are whether the Lord Chancellor's Department considers that there is a problem and, if so, what can be done to resolve or mitigate it. When speaking towards the end of a debate of this nature, it is inevitable that everything that one wanted to say has been said, and more authoritatively so. In particular, I join in paying tribute to the maiden speech of the noble and learned Lord, Lord Archer of Sandwell, which managed to be both forthright and uncontroversial.
When one looks at any list in any main court centre it is clear that the administration of justice in the High Court depends largely on deputy judges; that is, either circuit judges acting up or practitioners working temporarily as judges. I understand that deputy High Court judges are paid 1/365th of a High Court judge's annual salary per day on the undoubtedly correct premise that High Court judges work every day of the year.
No one would question the desirability of being able to call on the services of deputy judges to meet temporary needs. It gives flexibility to the system and provides early judicial experience. However, neither reason justifies excessive reliance on temporary judges. In the Queen's Bench Division, as the noble and learned Lord, Lord Ackner, has just demonstrated, the use of deputy judges is not exactly a youth opportunity scheme. One observes only that in the situation which has developed the use of deputy judges in the High Court is temporary in the same sense as income tax was a temporary imposition.
There is no doubt that in the Queen's Bench Division in London the use of deputy judges means that interlocutory summonses and appeals can be heard swiftly. However, an acute problem exists in the Commercial Court, which was referred to by the noble Lord, Lord Byron. I understand that two judges of that court have recently been transferred to the Court of Appeal, two are involved in long cases and two are left to carry out the workload of six. It is questionable whether that court, together with the other specialist courts which are governed by Section 6 of the Supreme Court Act 1981, can rely on deputies at all. The provisions of that section make it clear that the judges shall be puisne judges of the High Court as may be nominated from time to time.

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In the Family Division, where I carry out most of my work, there is also reliance on deputies. My experience is that they tend to be somewhat younger. I have no qualms about appearing before senior practitioners whom I know and respect, but sometimes their status has to be explained to puzzled litigants. It is ironic that sometimes the use of deputies provides less flexibility. If a case overruns slightly, a third professional practitioner's commitments are to be considered. It may well be that a deputy who is committed to sit for 5 days cannot, as a result of his or her own professional commitments, sit for some time thereafter to give the case the sixth day which may be necessary for completion.
During the past year, until the middle of this month, Family Division judges have been under great pressure. It was only in the middle of this month that the transitional provisions of the Children Act 1989 finally expired. In future the intention is that the more difficult cases involving children will be filtered out to the High Court judges. I recognise that the system will not allow non-specialist judges to hear those cases. But that itself may cause pressures aggravated by the time-tabling requirements of the Children Act. One result may be to impede the other business of the Family Division; in particular financial cases in the matrimonial sphere which may involve the future security of children.
I understand that another element in the life of a Family Division judge is that he may be called away from London at relatively short notice, being on standby to work in other court centres. I am aware that there are mechanisms in place to scrutinise the working of the Children Act. Perhaps at this stage one can ask no more than that the noble and learned Lord the Lord Chancellor will heed any recommendations which may come through the system for future judicial man and woman-power under the working of that Act.
Perhaps I may touch on two further problems of the Family Division. The first is the need for judges during the vacation. Family crises are not confined to legal terms. Indeed, they tend to increase with the intake of Christmas spirit. I and many of my colleagues spend much of the 23rd and sometimes 24th December of most years waiting to appear before one or two desperately overworked deputy judges. To have such a number of practitioners (barristers and solicitors) waiting outside courts with varying degrees of patience costs money—usually public money.
Another aspect touched on by the noble Lord, Lord Irvine of Lairg, is that one judge of the Family Division is permanently seconded to the Employment Appeals Tribunal. I echo and emphasise what the noble Lord, Lord Irvine, said about that particular tribunal. I have appeals waiting to come on before that tribunal. The facts of the cases involved have long left my memory and will take some time to revive. The impact for the litigants is as the noble Lord described. The appellant who depends on the outcome of his appeal to receive the modest award of the industrial tribunal, for whom interest does not accrue, is sadly affected by the delays in that tribunal. As the noble
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Lord said, remedies such as reinstatement which are available in the industrial sphere become of almost academic interest after such a prolonged delay.
There is no doubt that one solution to the problem in part is to increase the numbers in the Court of Appeal. As most of your Lordships will know better than I, at present numbers in the Court of Appeal are made up from two sources. First, puisne judges who would otherwise be sitting at first instance. Of course in the Criminal Division that sometimes means that Mr. Justice A is hearing an appeal for Mr. Justice B. The other source is retired judges and Lords Justices who have been brought back on an ad hoc basis. Sometimes it is rather surprising to have valedictory speeches to a judge or a Lord Justice on a Friday only to find him sitting in the Court of Appeal on the following Monday, unless he is fortunate enough to have taken up a lucrative practice as an arbitrator.
I shall not repeat the arguments about age which have been already ventilated in the debate on the Judicial Pensions and Retirement Bill. I have learned that one can only delicately suggest in this House that at the age of 75 or so people are not still somewhere short of the prime of life. But I suggest that it is not desirable that those who have retired and who are heading towards their 80th year should be brought back to work, as now happens.
As I say, most of the points have already been made far better than I could make them. The need for a fully-manned High Court Bench is not just to serve the public in the short term but is to maintain the long-term public confidence in the calibre of the judiciary and the administration of justice.
6.32 p.m.
Lord Mishcon: My Lords, it is my great pleasure to be able to be the first from this Front Bench to congratulate my noble and learned friend Lord Archer on his maiden speech, which was accepted by your Lordships with enthusiasm and with the expressed hope that we shall hear him often in the future and have the benefit of his experience. I thank my noble friend Lord Irvine of Lairg for asking a Question which is of the utmost importance in regard to the administration of justice. Eight speeches have been made so far in favour of what he submitted, including one observation made with all humility by the noble and learned Lord, Lord Ackner.
There may be some confusion—at all events, there is in my mind—between two aspects of this matter. The first is the question of whether it is proper—indeed, whether it is legal—to have sitting as High Court judges deputy judges who may be circuit judges and who may have been drawn from leading counsel. That is a separate matter which is extremely important. However, one must separate it from the question of delays which has been mentioned as an important factor in the debate. The delays are there, even though the deputy judges are sitting. Therefore, it is a calamitous situation which one must recognise as such, and keep separate from the fact that even with them sitting, there are those unconscionable delays in the various departments of justice.

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It has been said—and there is no point in my repeating it at length—that to have deputy judges sitting in the High Court should be, as Parliament so decreed, a temporary measure for two reasons. First, the litigant is entitled to have a High Court judge in a High Court case. That is even more so after we had the debates, which were long in your Lordships' House, on the Courts and Legal Services Act. Then we were told that there were many cases which could easily be tried in the county court—and the county court lists are full already throughout the land—and there are other cases which are too important for the county court and which therefore must remain in the jurisdiction of the High Court.
The only way in which that differentiation can be made must be on the basis that, without any offence to any judge who sits as a circuit judge or to any member of the Bar who reaches the stage of being leading counsel, the only way in which that citizen should have his case tried, whether as plaintiff or defendant, is by a High Court judge with a High Court judge's experience and skill.
If that is right, then how can we in the legal profession explain properly to a member of the public who appears in the High Court in a case which, by definition, is only fit to be tried by a High Court judge that he is not to be favoured with that privilege but that his case is to be tried by a deputy, being a judge who is either a circuit judge or somebody who has not yet been appointed as a judge at all?
The second reason which has been given is a proper one. Parliament has decided that that can be done only as a temporary measure—I might almost say as an emergency measure. That is because the appointment of that person as a deputy judge lies within the power of a department, in the sense that the department compiles a list. It may very well be that the actual assignment is done outside that department by one of the senior judges.
The fact is that the appearance of that list or the fact that a county court judge, a circuit judge, may be appointed to carry out that task, is an executive act by origin. It must be wrong, if one is thinking in terms of the complete independence of the judiciary, that such a system as this should be anything other than temporary or to cover an emergency. For it to be an established part of our procedure in regard to the appointment of the judiciary to look after various cases must be wrong.
Even with this system which must be a wrong system, operating all too frequently and permanently, we have delays. They have been described in the course of this debate as being critical; and, if I heard the noble and learned Lord the Lord Chief Justice correctly, will border on being a national disgrace if the matter is not remedied.
I take for granted that the noble and learned Lord the Lord Chancellor listened to the debate with pleasure. In spite of all the humble observations that were made to him in the course of the debate, I believe that he welcomes the fact that his hand will be strengthened by the speeches of eight participants—seven of whom are extremely experienced and one of
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whom addresses your Lordships now though not in that capacity—which were unanimous in saying that the situation cannot be allowed to continue. I believe that the noble and learned Lord will gain the support he wants in what I am sure will be the result of the debate; namely, in his making further representations for the appointment of a considerable number—I repeat, a considerable number—of additional High Court judges.
I conclude, I hope not clumsily, by saying that the quality of justice as well as mercy must not be strained. One hopes that the speech from the noble and learned Lord the Lord Chancellor will act as the gentle dew from heaven upon the Treasury beneath.
6.41 p.m.
The Lord Chancellor: My Lords, I begin by saying that I am grateful to the noble Lord, Lord Irvine of Lairg, for raising this matter. I am the first to acknowledge that it is an extremely important subject to which attention has been drawn. I should also like to congratulate the noble and learned Lord, Lord Archer of Sandwell, on a distinguished maiden speech. I can say with complete sincerity that I was looking forward to his coming to this House. I am sure that his being here as part of our number is a great addition to the House and the quality of his maiden speech demonstrates that that expectation was well founded. I believe that there is much that the noble Lord can do which will be helpful in the future in relation to the administration of justice.
At the beginning I should perhaps say a word in regard to the statutory background. There has been a degree of confusion in what has so far been said regarding deputy judges and circuit judges. The relevant provision that now operates is Section 9 of the Supreme Court Act. Section 9(1) provides that,
"A person within any entry in column 1 of the following Table may at any time, at the request of the appropriate authority, act—(a) as a judge of a relevant court specified in the request; or (b) if the request relates to a particular division of a relevant court so specified, as a judge of that court in that division".
That is a provision that contains no reference to "temporary" or anything of that kind. One of the provisions that appears in Section 9(1) is that a puisne judge of the High Court may sit in the Court of Appeal. If he is to sit in the Criminal Division of the Court of Appeal, he does so at the invitation of the Lord Chief Justice. With regard to other invitations, the appropriate authority is not the Lord Chancellor's Department, but the Lord Chancellor.
Another part of that provision concerns the circuit judge. A circuit judge, when requested by the Lord Chancellor, sits as a judge of the High Court. He is not a deputy. The court list that one sees daily shows that distinction. It says,"His Honour Judge So-and-so sitting as a Judge of the High Court"; whereas Mr. X QC will be sitting as a deputy High Court judge. That is an important distinction and must be emphasised.
The provision with regard to deputies is Section 9(4), which states,
"Without prejudice to section 24 of the Courts Act 1971 (temporary appointment of deputy Circuit judges and assistant Recorders), if it appears to the Lord Chancellor that it is expedient as a temporary measure to make an

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appointment under this subsection in order to facilitate the disposal of business in the High Court or the Crown Court, he may appoint a person qualified for appointment as a puisne judge of the High Court to be a deputy judge of the High Court during such period or on such occasions as the Lord Chancellor thinks fit".
As I understand the position—I do not believe that any of your Lordships who have longer experience of the High Court than I question the fact—that provision or its predecessor has been in use for a considerable period of time. I inherited that situation. But there may be a question of the scope of the phrase,"as a temporary measure". I suspect that that qualifies the appointment of the individual.
I looked at the judicial statistics for the use of deputy High Court judges in that sense. The figures I saw indicate that with regard to the Chancery Division, in the statistics for 1991, the percentage of such deputy High Court judges used was 15 per cent; in the Queen's Bench Division it was 16 per cent. and in the Family Division,13 per cent. In the circumstances I question whether that is unreasonable.
The picture was painted by your Lordships—particularly my noble and learned friend the Lord Chief Justice—of the situation presently existing in the High Court. There is of course quite a degree of difference in the waiting times in the various parts of the High Court. Before I go further, as I am reminded of it at this moment, perhaps I should mention that my understanding is that the Commercial Court had reached a reasonably stable position in which the court was able to allocate trial times in respect of parties who were ready for trial; in other words, the time taken to give the date was approximately the time required for the trial. I believe that that was the general position.
The Commercial Court has been affected by recent promotions, as my noble friend Lord Byron said. From one point of view that is a recognition of the quality of those who are sitting in the High Court. But it has consequences. It is not immediately possible to replace those judges. It takes a little time. There is no question of the complement having been affected, but in the nature of things those who are in practice in the Commercial Court may not be immediately available to be appointed to the High Court. I can assure my noble friend and others of your Lordships who are interested, that with regard to the Commercial Court I hope that we shall soon be in a position to appoint qualified judges to the Bench for that court. I therefore regard that matter as temporary and hope that it will continue to be so.
I must say that when I first became Lord Chancellor the waiting times in the Commercial Court were rather long and those in the Chancery Division were rather short. I am sure that my noble and learned friend Lord Donaldson of Lymington will remember that we took part in this kind of discussion when I first came on the scene. The situation has now somewhat changed and the Chancery Division is under more pressure.
With regard to the Queen's Bench Division, my understanding is that the waiting times on the warned list are in the region of two months. For fixtures, for
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cases of one to two weeks, the waiting time is nine months and for cases of three months and above in length, the waiting time is 14 months. In the Queen's Bench Division at the end of March 1991 there were 1,800 outstanding cases; at the end of March 1992 there were 1,300.
The position of the Chancery Division is different. The waiting times in that division were 22 months in March 1991. In March 1992 they were 25 months and by September 1992, I understand from Part I of the Witness List, that the waiting time had fallen to 22 months. In the floating date part of Part I of the Witness List the corresponding figures were 13 months,14 months and 16 months. In Part II the waiting times are nine months, nine months and nine months.
In March 1992 the Chancery Division backlogs were 475 in the Witness Part I List and 268 in the Witness Part II List. By September 1992 that had fallen to 450 and 213 respectively. I can give the figures for other parts. That just emphasises that there are differences in the different parts of the court. I accept that some parts are more important in the sense of having a higher priority than other parts. I believe, with my noble and learned friend the Lord Chief Justice, that the highest priority should be given to the Court of Appeal (Criminal Division) in dealing with these matters and that the way in which the judicial power is deployed should recognise these priorities.
On 1st April 1988 the total strength of High Court judges was 77. On 1st June 1992 it was 85, so there had been an increase of eight in that period. Since then, because of promotions and so on, there has been a temporary reduction. I hope that judges will be able to take office in order to come back to the previous figure.
The situation is one which requires a thorough review. We need criteria on which to assess in a reasonably solid manner the numbers of High Court judges that are required. It is for that reason that I have sought, with the co-operation and assistance of the Lord Chief Justice, to set up a group to advise the Lord Chief Justice and myself about a number of matters which should form the basis of policy in this area. The issue is of an importance that requires that. It is one thing to believe that because of delay more judges are required; it is quite another to determine how many and on what basis. The basis on which all the work is done requires to be examined.
For that reason, with the co-operation of my noble and learned friend the Lord Chief Justice, some senior judges and officials of mine are working together to advise us on the work, deployment and numbers of High Court judges. I believe that this advice requires to cover a number of areas. The first is what work it is appropriate for a High Court judge to undertake and what can be left to others. Here I come to the point made by the noble Baroness, Lady Mallalieu. There are circuit judges who are approved to deal with serious cases. As I believe was said, they often do so in a most exemplary way. Therefore, it is appropriate that they should try such cases.
The precise criteria defining the type of case are not easy to specify, but it is important that we should try

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to do so. The issue is not a simple one. The present division of cases into four groups in accordance with the current practice direction is not particularly easy to apply when distinguishing between High Court judges and circuit judges as suitable judges to preside. For example, quite a number of very complicated fraud cases are in the class 4 classification so that the classification of itself is not very useful for this purpose.
Another question is how High Court judges should be deployed to meet the relative needs of the various courts into which they are required to go. My noble and learned friend has mentioned that already. The Employment Appeal Tribunal is an important body which is not to be overlooked. We have taken steps to improve the situation as regards that body and I believe that the number of cases with which it is able to deal has increased substantially on that account.
I want to make it clear here that, although it has been sometimes suggested that I have in mind departing from the circuit system, I have no such intention. I believe that the circuit system, with the High Court judges going on circuit, is an important part of our arrangements, but the precise way in which that deployment takes place is a matter for consideration. The group will advise us on that.
When these various advices are given I hope that we shall be in a position to formulate and develop a more systematic method than we have had so far of determining the numbers of High Court judges required. I have to remember in all this that these very important people are provided at the public expense. Therefore one must be reasonably satisfied that they are being required to work on a basis which is satisfactory from that point of view.
I hope that the advice for which we have asked will be available to my noble and learned friend the Lord Chief Justice and myself within the coming few months and that we shall be able to take action on the basis of that advice.
Lord Irvine of Lairg: My Lords, I wonder whether the noble and learned Lord will give way. Can he tell the House, on the basis of all the information about the operation of the system which he has, whether he does or does not accept that there is a clear and present need for more High Court judges?
The Lord Chancellor: My Lords, I believe that it is necessary to provide a basis for the answer to that question. It is easy to take some aspects of the system and to suggest that that is so. But I believe that a proper answer will not be just an answer to that particular question, but will also contain some statement of how many and how that has been determined. If one is going to make a big change—and that is what has been asked for—then one must have some pretty secure basis on which that change should rest. We have been able to make quite substantial changes in the establishment of the Circuit Bench and, as has been pointed out, one of the results of the civil justice review is that a good deal of work that was previously dealt with in the High Court has gone down to the county court. It is not therefore surprising
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that we should need some more circuit judges, but we have had quite considerable increases in the number of circuit judges. We must have in place a proper system from which the answer to the noble Lord's question could then be derived. There is not much point in seeking to give an answer in advance of getting that work done.
I reiterate that I am grateful that this Question has been put. It enables me to make clear what steps we are taking to deal with the matter. The matter is of an importance that requires such steps and the steps that I propose in co-operation with my noble and learned friend will in the end produce a satisfactory result.
Lord Donaldson of Lymington: My Lords, before the noble and learned Lord sits down, will he address the question which I put to him and which I think others put to him? While accepting fully that one must have a proper basis for asking for an ultimate and long-term increase in the statutory numbers of High Court judges, is he really saying that he thinks it at all possible—conceivable even—that something less than an additional, say, five, six or seven High Court judges will be required? If that is the case, why cannot the statutory limit be increased to that extent in anticipation of the results of the review?
The Lord Chancellor: My Lords, first, before one puts forward any such application it is necessary to provide a reasoned case for it. We are examining whether there is such a case and the basis on which it can be put forward. I believe that that is the right way to go about it. As I have pointed out, since I have been in office the number of High Court judges has been increased by about eight. The time is ripe for making sure that we have a proper system for dealing with all the questions that have been raised, including the extent to which it may be appropriate for deputies, in the true sense, to be used. Viewing the matter solely from London, the impression of the total number of deputies being used may be somewhat distorted.
There is also the question of whether it is completely improper or unwise to use people as deputy High Court judges who would be fully qualified to be High Court judges but who for some reason or another do not wish to be High Court judges. The main basis on which these matters proceed is that the arrangements for deputies require to be considered against the background of the total complement, but a proper distinction must be made between deputies and those who serve as judges of the High Court on being invited to do so.
Lord Mishcon: My Lords, before the noble and learned Lord finally sits down, perhaps I may ask one further question. As was anticipated, he mentioned the review which is being set up and which he anticipates may take a few months. Is it his intention that the results of that review will be made available to Parliament?
The Lord Chancellor: My Lords, if, as some will predict, the result was that an application was

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required for raising the statutory ceiling, then obviously Parliament would have to be informed of the basis on which that proceeds. I am certainly looking for advice which will enable us to formulate a basis on which to proceed. The basis will certainly be
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a matter of the most intense interest to Parliament if it justifies applying for an increase in the present statutory ceiling.
House adjourned at four minutes past seven o'clock.