§ 7.20 p.m.
§ The Minister of State, Scottish Office (Lord Fraser of Carmyllie) rose to move, That the draft order laid before the House on 28th October be approved [41st Report from the Joint Committee 1992–93].
§ The noble and learned Lord said: My Lords, I beg to move that the House consider the draft Maximum Number of Judges (Scotland) Order 1993.
§ This House is not unfamiliar with draft orders of this type which seek to increase the maximum number of judges of the Court of Session. Since 1968, when provision was made in the Administration of Justice Act to the effect that increases in the number of judges should be made by Order in Council, there have been five such orders, the last in 1991.
§ The reason for this present order can, I think, be put very simply. Without an increase in the judicial strength of the supreme courts, they will not have sufficient judges in 1994 to deal with all their commitments.
§ There is, first, the commitment to deal expeditiously with appeals, both criminal and civil. These have increased very substantially in recent years and three appeal courts are now sitting on virtually a continuous basis, thereby requiring a total of nine judges. Secondly, there is the requirement to deal with first instance criminal business. Projections based on cases which have already entered the system indicate that no fewer than 12 judges will be required through much of 1994 to deal with first instance criminal business. Thirdly, there is first instance civil business which requires to be dealt with expeditiously if the interests of the private individuals and public companies are to be protected.
§ In recent years, the workload of the supreme courts has increased at an annual rate of between 7 per cent. and 8 per cent. That has placed a very considerable strain on the supreme courts and has generated the need for the present order.1080
§ Over the past decade, legislative provision has been introduced in order to provide some supplementation to the judicial resources of the supreme courts. Under the provisions of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 retired judges may from time to time be recalled to sit on the bench until they have reached the age of 75. Over the past eight years, retired judges have made an important contribution to the work of the supreme courts but there are, now, only two who are eligible to serve in this way.
§ The Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 made provision for the appointment of temporary judges to the supreme courts. There are at present eight temporary judges in office. Of these, two are practising members of the Faculty of Advocates and six are full-time sheriffs, whose experience in the handling of criminal business is especially useful in the High Court of Justiciary.
§ The allocation of temporary judges to courts and to cases, is a matter entirely and properly for the Lord President. I am advised that his policy is to use temporary judges only where that is necessary to make good a temporary shortfall due to absence in the existing complement of full-time judges, or in other exceptional and unforeseen circumstances.
§ It is clear, I believe, that temporary judges are making an important contribution to the work of the supreme courts and have helped to maintain the efficiency with which the business of those courts is conducted. It is worth reminding your Lordships that it was a distinguished member of the Bench of the Court of Session in Scotland, Lord Maxwell, who first proposed that the use of such temporary judges should be available to the court.
§ There have been a number of changes in practice and procedures over recent years which have improved the efficiency of the courts and brought about some relief of the pressure on them. I should like to refer to only one. A report to the Lord President on the handling of commercial causes in the Court of Session has been completed very recently by a working group under the chairmanship of Lord Coulsfield. I understand that the working party has recommended certain changes relating to the procedures applying to commercial causes in the Court of Session. I am advised that the Lord President considers that, if implemented, the proposed changes would serve to improve the quality of service provided to all those conducting business in Scotland and that these could usefully be incorporated in the Rules of Court.
§ An important part of the recommendations is that organisational changes should be made in order to ensure that the commercial judges are available whenever required for this work. The present draft order will, if approved, be particularly useful in facilitating the provision of any additional judicial resources which may be required to secure these much needed improvements in the services provided by the Court of Session.
§ It is, I believe, very much to the credit of the Lord President and the work of all the judges and staff of the supreme courts that in spite of the very heavy increases in workload experienced in recent years the quality of 1081 service provided by the courts has generally been maintained at a high level. Waiting periods for many different types of business have been maintained at or within the optimum intervals recommended by the Maxwell Committee, to which I have referred. It is, however, now abundantly clear that to maintain the efficiency of operations in the supreme courts an additional judge is required immediately, and the present draft order, when approved, will allow that need to be met.
§ The House will note that the draft order also recognises that a further additional judge may be required in due course. In the light of what I said earlier about workload trends, I trust that the House will agree that it would be only prudent for us to take the present opportunity to create a second additional post. I beg to move.
§ Moved, That the draft order laid before the House on 28th October be approved [41st Report from the Joint Committee 1992–93].—(Lord Fraser of Carmyllie.)
§ 7.30 p.m.
§ Lord Macaulay of Bragar
My Lords, this order is a very short one but it is very important in relation to the administration of justice in Scotland. It is welcomed on this side of your Lordships' House, as it was in another place where a very full debate was held recently. I do not intend to go over all the issues raised in the course of that debate. I agree with the Minister that it is a welcome and positive contribution to the proper administration of justice in Scotland and to the maintenance and continuance of the high quality service to the public in the courts of Scotland.
I have noted with interest the assurance given by the Lord President to the noble and learned Lord about how temporary judges are being used since the inception of that particular post following the passing of the 1990 Act. But I am bound to say that this order comes at a time when there is seen to be an unhealthy increase in the use of temporary judges both in the High Court of Justiciary and in the Court of Session, dealing, first, with criminal matters and, secondly, with civil matters. The increased use of temporary judges gave rise to fears, justified or otherwise, that we were witnessing the establishment of a two-tier system in the administration of justice, particularly in the Supreme Courts but also in the lower courts, with the mixture of the full-time judge and the temporary judge.
The figures recently given to me in answer to questions which I set down some time ago indicated that so far as the use of temporary judges was concerned, they were used on 177 occasions in the year from 1991–92. But rather startlingly that figure rose to 211 in the half year to September of this year. If that trend is continued, temporary judges will have been used on over 400 occasions in either the High Court of Justiciary or the Court of Session. That is an unacceptable use of the device, if I may so call it, of using temporary judges. I pay tribute too to the work done by retired judges. But the very fact that there is such prolific use of temporary judges and the requirement to use retired judges clearly indicate the need to supplement the full-time judges in the supreme courts by an order such as this.
1082 I wish to raise several questions on this occasion. I noted what the Minister said. about the implementation of the provisions of the order. The order itself amends the Court of Session Act by altering the maximum number of judges from 25 to 27. As I understood the Minister's remarks, the prospect for the administration of justice in Scotland is that one appointment will be made fairly shortly once the order is in force and the other will be held in abeyance. I find that a fairly startling proposition, bearing in mind the issues that I raised in relation to the use of temporary judges at this moment. There is a belief—I put it no higher than that—widely circulating within legal circles in Scotland that in fact the grubby hand of the Treasury is involved in this matter; it was the Treasury that said to the administration that it would not sanction the appointment of two new judges at this point and that for Treasury reasons only one early appointment could be made and the appointment of the second judge must be delayed for some time, whenever that may be.
It is no doubt true that, whatever administration is in power, the Treasury will always want to ensure that money is being properly used. On 7th September 1993 the Lord President of the Court of Session, in a powerful address to the Law Society of Scotland, made some serious observations about what is happening in the judicial system in Scotland. I take this opportunity to put on record what he said. Dealing with the professional judiciary in Scotland, he said:They are better trained than they ever have been and work harder and with greater efficiency—which is just as well, because there is no doubt that the demands on them have increased markedly in recent years. If I were to be asked, therefore, for my view as to whether the system which I have described is still able to respond effectively to these demands, I would say yes it is—provided it is properly funded. It has been said before, and I shall say it again, that, to underfund the justice system is a dangerous economy".At a later stage he said that:we [the judges] cannot go on providing a service of quality, in the face of the continuing rise in the sheer volume of business in our criminal courts, without a significant additional commitment of public money. More money is needed to ensure not only that the public has access to justice, but also that justice is provided to the best ability of all those who are there to provide it. There is no doubt therefore that we need more full-time judges in the High Court"—not just one full-time judge, if I may say so—unless our ability to provide a proper service to those in need of our services in the civil justice system is to be severely compromised … unless more judges are appointed to enable us to provide the service which is required. The request for more judges has been made by me, and I know that it is being considered carefully. In my judgment it is essential that it should be granted if the quality of both criminal and civil justice in this country is to be maintained".No doubt the Lord President will interpret his own words as he meant them to be understood. But to myself and perhaps many others that would appear to be a plea from the Lord President not just to appoint one judge when this order goes through but to face up to the realities of the commitments of the judiciary in Scotland and to appoint more judges and not just one. If such an administrative restriction has in effect been made by the Treasury, it goes against the spirit of the order.
If this order is the government response to those observations and the request of the Lord President, particularly in relation to the High Court, and if it is a 1083 measured response, presumably made after consultation with the Lord President, it follows as night follows day that both appointments must be made in the immediate future with minimal delay. It is all very well to build into the system the availability and use of part-time senior judges to whom the Treasury has no permanent salary or pension commitment, but care must be taken to minimise their use to only when necessary and for good reason—the unavailability of full-time judges, for example, through illness or when another full-time judge's case overruns—and not, as it appears to be, as a blatant cost-cutting exercise by the use of a second tier of judges. The word "temporary" must not be allowed to become de facto "permanent" in the administration of justice.
Let me ask these questions. Are the Government satisfied that these appointments—or the appointment, as I understand the Minister—when made will diminish the requirement for the use of temporary judges and keep it to the minimum, rather than have them apparently built into the structure of the administration of justice? Are the Government able to comment on the widely held view of practitioners in the law in Scotland—and indeed some have told me that this has happened—that part-time temporary judges appointed by statute to High Court duty are not allowed by direction to deal with rape or murder cases? That is despite the fact that in terms of the 1990 Act, as well as being temporary judges in the Court of Session, they are in fact holders of the office of Lords Commissioners of Justiciary, with no limitation whatsoever placed upon them in the statute. Therefore they should be of equal status with the full-time judge and be able to deal with any case which comes before them in the High Court of Justiciary.
The sheriffs, who are in the majority, are judges who are well versed in dealing with very serious cases before juries in the sheriff court. It is difficult to see what logic or reason there is behind any such restriction, if in fact it exists. I am told by some practitioners at least that they have experienced a situation in which there has been slack in the take-up of cases in the court which could not be dealt with because the case was either a murder or a rape and the temporary judge who was available was not allowed to deal with it. If such an administrative restriction has been placed upon temporary judges in the exercise of their duties in the High Court—I emphasise "if" because I have no way of confirming it—no doubt those in practice in the law in Scotland would like to know by whom and for what reason such restriction has been placed on them.
The question must be asked, if such a practice is being carried out, whether it occurred with the noble and learned Lord's anticipation of the appointment and use of temporary judges. If such a practice exists, does it not make nonsense of the appointment of temporary judges and create élitism within judicial ranks? Can the Government say on what basis temporary judges are being allocated work?
As I said earlier, I noted what the noble and learned Lord said and what the Lord President indicated. But, with the greatest respect to the Minister and the Lord 1084 President, the facts of the matter seem to suggest that the temporary judges are becoming part of the permanent structure. I cite for example the court list for 20th December 1993, that list having been amended on 6th December 1993. It allocates one temporary judge to High Court duty on circuit along with two full-time judges. That situation was mirrored in the list of judges for a circuit on 13th December 1993, and on 29th November we have the allocation of a full-time judge and a temporary judge to a circuit. All that was done well in advance of the circuit giving notice as to who the judges would be. It would be an extraordinary state of affairs if there were so many full-time judges unavailable or ill that it required temporary judges to be allocated to fixed circuits in advance of the event taking place.
In the parliamentary Answer given to me by the noble and learned Lord, Lord Rodger of Earlsferry, he said:The assignment of Temporary Judges to particular courts and to particular types of case is not a matter for Her Majesty's Government but for the Lord President of the Court of Session".I accept that. But it is astonishing that the Government are apparently not monitoring the reasons requiring the use of temporary judges—creatures of statute created by this Government.
I am not basically opposed to the order on this side of your Lordships' House. The monitoring could be done on a purely factual basis, without interfering with the necessary independence of the Lord President. When tabulated and analysed, such knowledge would be of immense value in assessing whether the needs of the court system are being fully met on a constitutional basis and not by a cost-cutting Treasury exercise leading to the excessive use of temporary judges. The noble and learned Lord does not need to answer—indeed it is up to him whether he answers at all—but perhaps the Government will undertake to obtain that information, from whatever source, and publish even on a general basis the specific reasons for the use of temporary judges on all occasions on which they were being used and what work was allocated to them.
I understand—and the Minister will know better than I—that there is a permanent requisition in the sheriff court in Glasgow (said to be the busiest court in Europe) for six temporary judges. Is that the case? If so, is it not an appalling situation? I understand also that over 150 temporary sheriffs exist in the system.
Finally, will the Government indicate whether it is proper in principle for a full-time sheriff to be taken away from his sheriffdom and the court to which he was appointed, with the appropriate salary and pension, to sit as a temporary judge in the High Court and the Court of Session when there is work to be done within his own sheriffdom and that work requires the allocation of a temporary judge to the sheriffdom? It seems wrong in principle that that should happen in any case. Perhaps it was not anticipated when the Act was passed. But it leads to a full-time judge serving almost simultaneously in two different levels of judicial authority, and that is not good for the system. In addition, it may cause severe embarrassment.
1085 I am advised that on one occasion a litigant who was first inclined to go to the lower court in his sheriffdom was advised to go to the Court of Session, to the higher court. Had he taken that advice, encountering great expense in instructing Edinburgh solicitors and counsel, he could have walked into the Court of Session to find himself faced with the sheriff that he would have appeared before had he gone to his local court. I do not make up these matters as I go along. They were brought to my attention by practitioners.
The measure is welcome but it does not allay the basic instinct and current rumblings in legal circles that the efficiency of the Scottish legal system is being seriously undermined by the present practices of the whole of the working at judicial level. The Court of Session, the sheriff courts and the High Court require urgent review, with consultation with interested parties, and an analysis of how the work is being done in the courts. That should be made available to the public so that the people for whom the system exists will be satisfied, from the information provided to them and made publicly available, that they either are or are not obtaining value for money.
Apart from those observations, I wish to say nothing further on the matter. I see a look of great relief creeping over the face of the noble and learned Lord.
§ 7.45 p.m.
§ Lord Fraser of Carmyllie
My Lords, I am grateful to the noble Lord for at least one comment that he made: that he approved of the order that the Government are introducing this evening in your Lordships' House. I appreciate that he prepared his speech before he knew what I wished to say. However, I would have been grateful if he had paid a little more regard to the answers that he received from my noble and learned friend Lord Rodger of Earlsferry on a number of issues that he raised, the answers having already been given to him in a written form. I hope that the noble Lord will reflect on them.
I must take up only one matter with the noble Lord; that is, the suggestion of appropriate monitoring of temporary judges by the Government. As the answer to him indicated, the assignment of temporary judges to specific courts and specific types of case is not a matter for Her Majesty's Government. It is a matter for the Lord President of the Court of Session. I should have thought that the noble Lord considered that to be entirely appropriate—that it should not be for the Government to interfere in a direct way in the organisation of judicial business. I thought that that was a position which enjoyed general approval in Scotland.
I have no intention of trying to monitor the performance of the Lord President of the Court of Session in the decisions that he takes to allocate specific temporary judges either to specific courts or specific types of case. Many people would regard that as a quite unwarranted interference in his judicial expression. If the noble Lord wants to obtain such figures which may be appropriate for the purposes of an order such as this, to discover the number of days that temporary judges sit 1086 in Scotland, that information is available. Indeed, it was information provided to the noble Lord in a number of the answers he received recently.
I accept that there has been an increase in the utilisation of temporary judges in Scotland. In part it is for that reason that the order is being introduced this evening. It provides for one judge. As I indicated, he or she will be in post in the very near future. The second one will be introduced as and when the workload of the Court of Session requires it.
As I sought to indicate, the use of temporary judges—which I understood the party opposite agreed in principle was not a bad idea—is to deal with what are difficulties which occur from time to time through illness or unavailability of permanent judges and what are from time to time undoubtedly, as the noble Lord will be aware, surges in business beyond immediate prediction. They have been used and it is right to place on record that those temporary judges who served in the Court of Session and the High Court of Justiciary discharged their duties extremely well. I should not like there to be any aspersion cast on the discharging of those duties.
Clearly there is a requirement of fiscal responsibility in all this. If and when a further judge is required, that judge will be provided. The Lord President is clear that if he provides the necessary information to the Government in terms of workload, his request for a second full-time additional judge to be provided is one that will receive the most careful consideration.
§ Lord Macaulay of Bragar
My Lords, before the noble and learned Lord sits down, perhaps I can make clear that I accepted what was said in the answer given to me by the noble and learned Lord, Lord Rodger of Earlsferry. Indeed, I quoted from the answer, which I have before me. But I followed that with the words, "Be that as it may". I accepted that it is entirely correct that the Lord President should decide on the use of temporary judges. However, I then went on to another theme. It goes without saying that I cast no aspersions on the quality of work done by temporary judges and never intended so to do.
§ On Question, Motion agreed to.