§ 5.15 p.m.
§ 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 875 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.876
§ 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 877 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 878 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 879 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 880 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 881 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 882 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 883 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 884 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.
885 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.
886 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 887 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 888 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".889 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.
890 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.
891 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
892 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.
893 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 894 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 an895appointment 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 896 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 897 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 898 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 899 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 900 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.