Maximum Number of Judges Order 1993

HL Deb 09 February 1993 vol 542 cc602-17

7.36 p.m.

The Lord Chancellor (Lord Mackay of Clashfern) rose to move, That the draft order laid before the House on 21st January be approved [17th Report from the Joint Committee].

The noble and learned Lord said: My Lords, I beg to move that the draft Maximum Number of Judges Order 1993 be approved. I shall speak also in favour of the approval of the draft Maximum Number of Judges (Northern Ireland) Order 1993. Both orders were laid before the House on 21st January 1993. I shall formally move the Northern Ireland order later. The orders are made respectively under Section 2(1) of the Supreme Court Act 1981 and Section 2(1) of the Judicature (Northern Ireland) Act 1978.

The maximum number of Lords Justices was increased from 23 to 28 by the Maximum Number of Judges Order 1987 and there are now 28 judges holding appointment. The order proposed will increase that maximum number to 29.

In considering the justification for a further increase in the number of Lords Justices in England and Wales I hope that it may be helpful to set the matter in the context of demands on the Court of Appeal Civil Division and the resources which have been available to that court in recent years.

At the end of 1991, my noble and learned friend Lord Donaldson of Lymington, the then Master of the Rolls, in his review of the legal year, drew attention to the need for a: small increase in the judicial establishment of the Court of Appeal", which at that time, in addition to himself, stood at 27 Lords Justices. In the following year the new Master of the Rolls echoed that call by identifying an increase in the number of Lords Justices sitting in the Court of Appeal as one means of helping to reverse a trend of increasing backlogs of work in that court.

The number of final appeals received in the Civil Appeals Office over the last seven years has remained roughly constant at about 900 cases a year. Although interlocutory appeals over that period have increased from under 700 receipts to nearly 800 in 1992, it still seems unlikely that the rise in backlogs of about 25 per cent. can be accounted for by the number of additional appeals. Rather, it seems that the number of cases disposed of has fallen. It is not easy to determine the exact causes lying behind that fall, but the increase in reserved judgments from 15 per cent. in 1986 to 31 per cent. in 1991 suggests that one reason is that cases are becoming more complex and are therefore taking longer to dispose of. That view is reinforced by an increase in the number of civil appeals which take more than a week to hear.

In the light of the increasing backlogs and the call made by my noble and learned friend Lord Donaldson for a small increase in the judicial establishment, which his successor echoed, an additional Lord Justice was appointed last month. That brought the complement up to the statutory limit and my wish to add a further Lord Justice to the strength has necessitated the order which we are considering this evening.

I recognise that it may be argued that, given the current position in the Civil Division of the Court of Appeal, an increase of two Lords Justices is not in itself sufficient. I should explain to the House that the ability of the Court of Appeal to get through its business is not determined solely by the number of Lords Justices. An internal report in 1989 which the then Master of the Rolls endorsed made it clear that the need for Lords Justices could be lessened by employing more legal staff in the Civil Appeal's Office. It was in recognition of that fact that I have since provided for five new legal posts in that office.

For the sake of completeness the House in considering the justification for the proposed increase in the limit will wish to bear in mind, the Civil Division of the Court of Appeal aside, that Lords Justices also sit in its Criminal Division and in the Divisional Court as well as undertaking extra curial work such as public inquiries and the chairmanship of such bodies as the Security Commission.

The second named order—the Maximum Number of Judges (Northern Ireland) Order 1993—will increase the maximum number of puisne judges of the High Court of Justice in Northern Ireland from six to seven, thereby enabling the appointment of another judge. At present in Northern Ireland the High Court is comprised of the Lord Chief Justice and six puisne judges, which is the maximum number permitted under Section 2(1) of the Judicature (Northern Ireland) Act 1978.

I have reviewed, in consultation with the Lord Chief Justice of Northern Ireland, whether the appointment of an additional judge of the High Court would be justified at this time. The High Court judges in Northern Ireland perform a wide range of functions in the superior courts. In addition to dealing with the business of the three divisions of the High Court itself, the judges undertake a proportion of the criminal work of the Crown Court, in particular the trial of serious terrorist cases at Belfast Crown Court. The judges are required also to assist in the work of the Court of Appeal on a regular basis.

In respect of criminal trials, these are demanding an increasing commitment of judicial time. Some 80 per cent. of the Crown Court caseload dealt with by the High Court judges consists of the most serious terrorist trials, which are often of considerable length and complexity. It is obviously important for delays in all court proceedings to be kept to a minimum; this is particularly so in criminal cases, where the liberty of the subject is often involved. Accordingly in my discussions with the Lord Chief Justice we have agreed that the appointment of an additional judge will ensure that more judicial resources will be devoted to the work at Belfast Crown Court.

Measures have been taken already to ease the pressure on the High Court in respect of some civil work; the most notable step is a number of staged increases in the civil jurisdiction of the county courts in Northern Ireland which are likely to help by removing the more routine and lower value cases from the Queen's Bench Division. That measure has recently started. My information is that it is working well. We shall continue to keep its working under review.

It is clear nevertheless that the work of the High Court in a number of areas is steadily increasing. For example, the business submitted to the Queen's Bench Division increased overall by 23 per cent. between 1987 and 1991. The number of applications for judicial review increased three-fold between 1988 and 1991. In addition, a new commercial list has been recently introduced to give higher priority to commercial actions.

After careful consideration of the current and predicted workload of the Court of Appeal and the superior courts in Northern Ireland, I have reached the conclusion that additional appointments are necessary at this time and will assist in the more efficient dispatch of the business of those courts and that this House should further discharge its responsibility by approving the draft orders. I commend the orders to your Lordships.

Moved, That the draft order laid before the House on 21st January be approved [17th Report from the Joint Committee].—(The Lord Chancellor.)

7.45 p.m.

Lord Williams of Mostyn

My Lords, the House will be grateful to the noble and learned Lord for his clear exposition as to the background for the two orders. It is plain from the judicial statistics for 1991 that the increase is necessary. In 1990, 912 final appeals were set down in the Civil Division of the Court of Appeal. Nine hundred final appeals were disposed of during that year and 642 were still outstanding at the end of 1 he year. In 1991, 866 final appeals were set down; 782 were disposed of and at the end of the year 722 (an increase) were still outstanding. Similarly, in the Criminal Division of the Court of Appeal more appeals were outstanding at the end of 1991 than at the end of 1990. As the Lord Chief Justice said in your Lordships' House recently, it is approaching a national scandal that those who are awaiting their appeals in the Criminal Division of the Court of Appeal and who may have their convictions quashed should be languishing in custody.

We on this side welcome any attempt to increase the speed and efficiency with which appeals in the two divisions of the Court of Appeal are heard. We welcome the proposals, in so far as they go.

I make two observations. As the noble and learned Lord has indicated, the Lords Justices are not confined to judicial business. At present Mr. Justice Scott is heavily and fully engaged in other work. That means that his contribution to the Court of Appeal will have been removed for a period of many months.

The other observation I make, since I do not believe that a former Master of the Rolls could reasonably make it, is to pay full tribute to the work of the individual Lords Justices. It is exceptionally onerous work. It is not confined to sitting in court. There is an enormous amount of out-of-court work in terms of pre-appeal reading, the preparation of judgments and so forth. I believe that all lawyers from other jurisdictions who see our Courts of Appeal at work marvel at the quality of the work and the way that that quality of work is delivered with insufficient resources.

Perhaps I may touch briefly on other matters. The position lower down in the court system still troubles us. The single most important cause of delay is shortage of full-time judge power. In the Crown Office list waiting time for judicial review is at least 18 months. Bearing in mind the nature of the cases and the applications for judicial review, that simply is not tolerable. Should the Asylum and Immigration Appeals Bill pass through without substantial modification, delays will grow. In the Chancery Division at present a trial requiring more than three days of judicial time will wait almost two years. There is substantial delay in the Queen's Bench Division, in the Employment Appeal Tribunal and for criminal trials which need to be heard by a High Court judge. The Answer given in your Lordships' House recently indicates that the average period of waiting by an appellate from an industrial tribunal to the Employment Appeal Tribunal is about two years.

I am regretfully surprised and a shade disappointed that, despite all that has been said from both this side of the House and, more pertinently and powerfully, from those who hold high judicial office, we are not today considering a request from the noble and learned Lord the Lord Chancellor for an increase in the number of High Court judges, which I respectfully suggest is long overdue.

We therefore welcome the increase but are troubled as to whether the noble and learned Lord has given himself enough room for manoeuvre. Last Wednesday, your Lordships' House heard from the Lord Chief Justice that the present Master of the Rolls has estimated that 20 per cent. of the sitting time in the Court of Appeal (Civil Division) is taken up by litigants in person. If the eligibility proposals which we debated fully on an earlier occasion are forced through, that percentage will undoubtedly increase. That will involve further delays.

In 1987 your Lordships' House considered a request for an increase in the number of Lords Justices of Appeal from 23 to 28. The noble and learned Lord, Lord Denning, said on that occasion that the most important thing in a system of justice is that it should be quick in order to suit the needs of the people. Priorities may have changed since 1987. There may be a colder, harsher economic wind. Some may believe that these days delay is not the most significant denial of justice. Certainly in this House and in another place Ministers provide us with alternative injustices almost daily. Delay remains a significant blemish on the face of our system. As I said earlier, we therefore welcome this modest step but regretfully believe that it is too modest.

I turn succinctly to the question of Northern Ireland. The quality and distinction of the judges there are quite unmatched. Outside those who deal with Northern Ireland and its judicial system, that quality may well be largely unknown. It is certainly insufficiently commended. I willingly pay tribute to the quality of the judges in Northern Ireland since I can in part speak from personal experience. I do not think that any of us can begin to contemplate the burdens of the judges in Northern Ireland with all normal domestic life taken from them and with the necessity for 24 hour security. There are constant burdens not simply on the judges but on their families and those who know and love them. But we believe that the judiciary in Northern Ireland is severely overstretched.

As the noble and learned Lord indicated, delays in criminal trials, particularly where the allegations are of terrorist activities, are substantial. I have to say at once—again because I have carried out personal research with our colleagues at the Bar in Northern Ireland—that some of the delays cannot be attributed to the judges or the insufficiency of their number. Many defendants in terrorist cases request adjournments themselves because they want—not unreasonably it may be thought—counsel of their choice. But for whatever causes, trials in Northern Ireland are continuing on the unhappy basis that defendants have waited in custody, without bail, for up to two years. That cannot be right from the defendant's point of view nor from that of the complainant or witnesses nor for the repute of our system in Northern Ireland, when it is looked at by people abroad who may not be entirely favourable or generously inclined towards us.

The suggestion that we make—I hope in a spirit of helpfulness—is that it is essential to have three High Court judges sitting continuously at Crumlin Road court-house in Belfast. I should be grateful if the noble and learned Lord could confirm that the increase of one judge will lead to that situation. Though recognising that the noble and learned Lord has a good deal more intimate knowledge of Northern Ireland than we do, we suggest that those pressures would point to an increase of two High Court judges in Northern Ireland rather than the present one. Accordingly, we on this side of the House welcome the step that is proposed but are regretfully pessimistic that it may not be sufficient.

Lord Meston

My Lords, I speak only to the English order, wishing to support the views which have just been expressed by the noble Lord, Lord Williams. This is a depressing and hardly revolutionary order. It suggests that the powerful case for more judges in the High Court, which was put before the House in the clearest terms on at least two occasions in the past year, has not so far had any effect.

The procedures and administration of the Court of Appeal have been immensely improved and streamlined in recent years, thanks to the efforts of the noble and learned Lord, Lord Donaldson of Lymington, in the Civil Division. I like to think that both branches of the legal profession have responded to the combination of carrots and sticks which he offered during that period. That has undoubtedly mitigated the problems, but the pressures of work in the Court of Appeal clearly remain. As has been said, the work is onerous and often complex and quite serious delays persist, not least because appropriate priority has to be given to certain categories of urgent cases such as those involving children.

The Court of Appeal therefore still has to rely upon puisne judges who are needed elsewhere and upon retired judges. The pressures on the Court of Appeal inevitably have an effect on the rest of the administration of justice. It is a great shame that the opportunity has not been taken to address the wider problems of manpower in the High Court about which your Lordships have recently heard. For example, your Lordships may remember being told of the problems in the commercial court. As the noble Lord, Lord Williams, reminded us, yesterday we were told at Question Time that the average delay in securing a hearing before the Employment Appeal Tribunal is two years. That means that in employment cases, a matter may come before the Court of Appeal years after it was first heard in an industrial tribunal.

Now is not the time to expand upon those problems, particularly as they have been discussed recently in the House. But I ask at this stage whether the noble and learned Lord the Lord Chancellor can indicate whether anything more can be expected in the foreseeable future.

Lord Fitt

My Lords, the noble and learned Lord the Lord Chancellor will be aware of the crucial importance of the courts in Northern Ireland. There is a divided community where it would appear that on occasions a significant section has no faith in and does not place its trust in the judicial system and the judiciary. I have never taken that view, but I am realistic enough to know that certain sections of the Northern Ireland community would like to cast aspersions or suspicion on the whole judicial procedure in Northern Ireland.

I refer only to Northern Ireland, after some years of experience there. It is of crucial importance that the one judge—and it has already been advocated that there should be two—should have the support and trust of the whole community in Northern Ireland. I can see difficulties arising in the future and I should like to put a case to the noble and learned Lord the Lord Chancellor.

In the late 1960s a vacancy occurred in Northern Ireland for a judge. There were many applicants at that time for the position because it was before the advent of the civil rights movement and before the danger became obvious to judges. One of the applicants for the vacancy in the High Court was a man who had a brilliant war record with many military honours for his service in the Army during the war. He had many academic qualifications, as well as legal and other qualities, and he applied for the job. However, before his application was put in he knew that he had little chance of getting it. Through some of his friends an approach was made to me. I asked why he had not got the job —he was an ex-serviceman; he had many military commendations and all those academic qualifications. The reason given was that he was a Catholic and therefore at that time he could not be appointed to the position.

I was then a Member of another place. I approached the Lord Chancellor and the Attorney-General at the time and told them that in my estimation, without any legal qualifications whatever, I thought that the man might be a possibility for the position. They told me that they would look into the matter, see what were his qualifications and speak to me later. Both did so. They came back to me and told me that they were under a great deal of pressure—the words which they used were that they were "under an awful lot of pressure"—from the Northern Ireland Government which was still in existence, to appoint (again using their words) "one of their own". That meant that he was not to be a Catholic.

The whole matter dragged on for a few months and then I was told from someone in another place that the Lord Chancellor, who always had the responsibility for appointing the Northern Ireland judges, was under such extreme pressure from the Northern Ireland Government that he could not appoint a Catholic on his own. Remember, that Catholic had a brilliant war record and excellent academic qualifications. In order to escape the pressure being exerted, the Lord Chancellor would appoint two judges. So they appointed the person I spoke of and they appointed another judge who was the Unionist nominee. That is a very sad reflection on the whole judicial system in Northern Ireland. The noble and learned Lord the Lord Chancellor will be aware in relation to the judge who is about to be appointed that there will be people in Northern Ireland who will be looking at his religious affiliations rather than his judicial qualifications.

I am only too well aware that at the present time there are many Catholics in Northern Ireland who are unwilling to accept the position of a judge of the High Court. As has already been said by my noble friend Lord Williams, they take upon themselves all sorts of security arrangements. They are under guard 24 hours a day. Many of them are very unwilling. The same thing applies to members of the Protestant community who are doing very well in a financial sense at the Bar in Northern Ireland and who are unwilling to undertake all the responsibilities and security arrangements involved in taking up the position of a judge.

I ask the noble and learned Lord the Lord Chancellor, who takes the final responsibility for the appointment which is about to be made, whether it will be done on the recommendation of the Bar Association. Or will there be political or religious considerations coming from Northern Ireland in relation to the person about to be appointed? I only mentioned that case, of which the noble and learned Lord the Lord Chancellor is probably aware—all he has to do is look at the history; it was in the late 1960s—to point out to him how crucially important it is that the judge about to be appointed has the support and the trust of the whole community in Northern Ireland.

8 p.m.

Lord Ackner

My Lords, I have frequently, consistently and most sincerely paid tribute from time to time to the outstanding powers of advocacy of my noble and learned friend the Lord Chancellor. I am sure that, mindful of the anxieties that have been expressed about the very serious shortage of senior judges, he has focused all those powers upon the Treasury in the hope of remedying the situation. I therefore express my deep sympathy that he will be standing before us today with virtually nothing to offer. I say virtually nothing to offer because, as has already been pointed out, Lord Justice Scott is to be taken away from the Court of Appeal and will no doubt be out of commission for a very long time. That is not an unusual situation. The report which my noble and learned friend will have received from the present Master of the Rolls mentions that last year one member of the court was engaged on an inquiry for the whole legal year, save for five days at the end. That is a recurring situation.

I have no doubt that in the course of exercising his powers of advocacy, my noble and learned friend will have drawn the attention of the Treasury to four quite distinct grounds for increasing the number—not up to 29 but, I venture to suggest, certainly to 35.

The first ground is the report of the Master of the Rolls, Sir Thomas Bingham, which was delivered at the end of last year. I quote from only a small portion of it. He starts his introduction by referring to the conclusions of my noble and learned friend Lord Donaldson as the previous Master of the Rolls, who ended his conclusions for the 1991–92 report with a sad statement, warning that, if changes are not made, the next report is likely to be considerably more gloomy than this". Sir Thomas Bingham then added immediately afterwards: Regrettably, that pessimistic prognosis has been borne out in the year now under review". He went on to say: the total of appeals outstanding at the end of the legal year, reveals a relatively gradual but very steady increase over the period, from 925 outstanding appeals on 30 September 1986 to 1214 on the same date in 1992. Over the last year alone there has been an increase of 79, from 1135 outstanding appeals to 1214". I emphasise what follows: This is a very significant increase, given that on average one 3-judge division of the Court hears about 75 appeals in a year". There is therefore a justification for three more Court of Appeal judges, leaving aside the replacement of Lord Justice Scott, merely to keep the increase at bay, let alone account for what exists at the moment.

Continuing with the report, the Master of the Rolls pointed out that the Court of Appeal, Civil Division, has great demands on it outside the civil appellate work. Throughout the legal year, 3 Lords Justices sat in the Court of Appeal Criminal Division and 2 in the Queen's Bench Divisional Court. At any time the judicial strength of the Civil Division was therefore reduced by 5 Lords Justices". He also went on to say that two Lords Justices, one the Deputy Chief Justice and the other the senior presiding judge have: duties in connection with such matters as Judicial Studies and various aspects of Security". The report produced by the Master of the Rolls is accordingly my first point. My second point, which is quite separate, is the Judicial Pensions and Retirement Bill, which is shortly to return to this House. Noble Lords may remember that that Bill is about to achieve a number of features. On the pensions side, the judicial pension is to be downgraded for the senior judges and the circuit judges, who will have to serve 20 years for their pension instead of 15. But on the age side, very much in answer to judicial pressure, the retirement age is to go down from 75 to 70; and what is significant to the point I am now making is that, once this part of the Bill becomes law, no judge over 75, retired or otherwise, may sit in a judicial capacity.

On 30th June 1992 on Second Reading of that Bill, I pointed out to the House that figures I had received from the Lord Chancellor's Department over the previous year showed that 500 judge-days had been sat by judges over 75; and, in the Court of Appeal, 100 judge-days by judges over 80. I quoted from the review of my noble and learned friend Lord Donaldson this statement: Retired Lords Justices provide the biggest source of reinforcement and without their help the work of the Civil Division would be in dire straits". He listed the eight retired Lords Justices who had sat during that year, and five of them were over 80 years of age. The Master of the Rolls currently lists eight judges, four of them—nature having taken its toll—now over 80 and one who will be 80 next year. That makes five out of his eight.

The number of legal weeks sat by retired judges in the Court of Appeal is 48½. In order for that work to be dealt with, at least two more Lords Justices are required unless the provision in the Bill has been included merely for cosmetic purposes and will not be brought into effect for year after year.

The third ground, quite separate and distinct, is the Bill being debated today—the Asylum and Immigration Appeals Bill. As I understand it, it is common ground in the department of my noble and learned friend the Lord Chancellor and in the Home Office that if the appellate provisions in that Bill remain as drafted, there will be a significant increase in applications for judicial review. That will involve Court of Appeal judges sitting in the Divisional Court and Court of Appeal judges sitting in the Court of Appeal. More judges will be required—a point made by my noble and learned friend Lord Woolf on Second Reading.

My fourth and final separate point has already been referred to by the noble Lord, Lord Williams of Mostyn; that is, the consequences of the drastic reduction in legal aid. Around 20 per cent. of Court of Appeal work is taken up by litigants in person. It must follow as night follows day that if those drastic cuts occur there will be more and more litigants in person. It is common ground that litigants in person involve an enormous extra demand on court staff for advice and on judges for ensuring that the litigants understand the case and what is happening in court.

Those four separate grounds show what a pathetic offer has been made by the Treasury; an offer somewhat like the provision of a strip of Elastoplast to staunch a haemorrhage. It is a refusal properly to fund the administration of justice which is beginning to become near contemptuous.

Lord Hylton

My Lords, I owe the House an apology. I assumed that the two orders would be moved separately. I find that I am wrong and that they have been moved simultaneously.

I wish to welcome the Northern Ireland order as a small step in the right direction. I say that because I understand that it is possible for a given judge to hear a case in the court of first instance and then again, as a member of a panel of judges, to hear the same case on appeal. That seems a situation greatly to be avoided if at all possible in that we all expect fresh judicial minds to be gathered together at the appeal stage. It is a matter about which I have been in correspondence with the noble and learned Lord the Lord Chancellor and I hope that the situation will soon begin to improve.

8.15 p.m.

Lord Donaldson of Lymington

My Lords, in addressing the House the noble Lord, Lord Williams of Mostyn, said that I could hardly be expected to pay tribute to the Lords Justices. I do not know why he said that. Perhaps of all Members present in the House today I know more about the work that they do. I should therefore like to take this opportunity of paying a heartfelt tribute to them.

By definition their work is difficult because of the level at which they are working and the fact that they are examining the work of other judges. Often the problems which face them are novel: at times they are called upon to interpret the law in a way which causes the law to grow. That is not something which is done lightly. They are prepared, as I well know, to sit at all hours should emergencies arise. On many occasions appeals have been brought perhaps in the middle of a Friday afternoon when it was necessary that they be decided before the weekend. Lords Justices have had personal engagements which they have readily set on one side in order that the work of the court may go on.

It should be known that it has never been a case of trying to persuade individuals to sit. The first person who is asked to sit invariably agrees to do so. Whatever else may be in doubt, there is no way in which the productivity of the Court of Appeal can be increased by means of increased effort on the part of the judges. They are working flat out and, indeed, I have heard their work described by other judges as in the nature of working on a treadmill.

The Court of Appeal must be looked at as a whole, not only the civil division but also the criminal division, as has already been made clear. Criminal work has priority. I make no complaint about that. But I, as Master of the Rolls —and I do not doubt that this is also the experience of Sir Thomas Bingham, my successor—while accepting that criminal work has priority, have found it disappointing that our establishment should be imperceptibly whittled away by the legitimate demands of the criminal division. The Lord Chief Justice made clear that in his opinion the present state of the work of the criminal division is wholly unacceptable in terms of the delay in the hearing of appeals. In order to mount an extra court in the criminal division one needs a Lord Justice and two puisne judges. As he does not have the puisne judges to sit to make up the extra division, it may be that there is no immediate need for a Lord Justice on that account. But the moment that he has additional puisne judges—as I hope he will in the near future —there will inevitably be a request from him to Sir Thomas to provide yet another Lord Justice to work in the criminal division. That will compound the problems which face the civil division.

My noble and learned friend the Lord Chancellor said that I had asked for a "small" increase in the civil division. All I would say is that it is not that small. I certainly asked for a small increase; I meant small against the background of 27. I do not have access to the correspondence which I had with the Lord Chancellor's officials while I was in office—not that it was taken away from me but merely that I did not wish to be burdened with all the files. My recollection may therefore be inaccurate but I believe that I was saying to him and to his officials that we need certainly three and probably five additional Lords Justices. Therefore, while the present offering is extremely welcome, it is a crumb in the scale of comfort and far more are needed.

The noble and learned Lord also said that I asked for a legal staff and have now been provided with it. That is true. Two years ago, or perhaps a little more, I asked for legal members of staff and I got them in July of last year. The purpose of having the legal staff was to make the court more efficient in the sense that work when put before the court would be better prepared—papers and the like—and also to ensure that, in so far as there was knowledge within the court as to parallel decisions or lines of argument which needed to be considered by the judges, it was made available to them. But I do not think anyone ever thought —certainly I never thought—that the provision of legal staff would make a very significant contribution to the amount of work which the court was able to get through. It makes some contribution, of course, but not the kind of contribution which perhaps might be implicit in my noble and learned friend's remarks today.

Among the resources that I was able to call upon there was one judge of the family division—a puisne judge—who helped us out for half the year, or perhaps a little more, the other half being provided by the President of the Family Division sitting in the Court of Appeal. It is entirely right that the President of the Family Division and the Vice-Chancellor for the Chancery Division should spend as much time as they can in the Court of Appeal. They are very senior judges. We need their specialist experience in developing the law. But they cannot sit all the time. So an agreement was reached some years ago that, in so far as the President of the Family Division could not sit, he would ask one of the puisne judges to sit. But it was only intended to be a temporary arrangement. It is wrong in principle that one should have a puisne judge sitting in the civil division of the Court of Appeal who in many cases has to hear appeals from judges of similar standing. Indeed it could happen—although we administratively tried to avoid it—that the judge concerned was involved with an appeal from a judge who was far senior to him in his own division. It must always be remembered that if he is sitting in a court of three his may be the decisive voice. So at least half a Lords Justice was absolutely essential if we were to be able to replace the Family Division judge, useful though his work is. I fear that this small offering will not enable my successor to do so.

The backlog began to rise at the end of 1991, and I warned of it. Sir Thomas Bingham, giving a report which in fact covered my year of office, said that the backlog was getting worse. My recollection of the monthly figures—I used to watch monthly figures, as my successor no doubt does—showed not only that the backlog was increasing but that the rate of increase was increasing rapidly. That does not seem to be in any way reflected in the proposed order.

My noble and learned friend Lord Ackner referred to the Asylum and Immigration Appeals Bill as likely to create more work through judicial review. That may be so—I hope not —but that is more work at one stage removed. Clause 9 provides a direct appeal for the first time to the Court of Appeal from the Immigration Appeal Tribunal. I was asked if I objected to it. I said that I did not and that I thought that it was right and sensible. But I certainly never contemplated that it would not be used.

There are only two ways of tackling the problem in the Court of Appeal. One is to produce a considerable increase in the judicial strength of the Court of Appeal. The other is to activate the power given under Section 8 of the Courts and Legal Services Act to put in place a proper filtering system to get rid of hopeless appeals without having a full hearing. The figures show that the rate of success of that class of appeals which has passed through a filter is considerably higher than the rate of success of those appeals which are brought as of right. It is a lesson which should be learnt.

My final point is one which has always caused me both anxiety and irritation. It is that although this House will be told—and rightly told—that it is being asked to increase the statutory limit on the number of judges, what matters on the ground is what is known along the judicial corridors (perhaps "in the trade" is the wrong expression) as the Treasury limit. There are two limits. One is the statutory limit, which is approved by both Houses of Parliament. Then there is another limit. One cannot appoint up to that statutory limit without the leave of the Treasury. For most, if not all, of the time when I was Master of the Rolls we were held down below the statutory limit.

I can well understand that successive Lord Chancellors would not want to trouble each House of Parliament with increases in the judicial establishment from month to month or even on a half-yearly or yearly basis. But what really should be done here is to take a giant leap forward in terms of the statutory limit, putting it as high as can conceivably be required and then use it up with Treasury consent as the case demands. I hope that I can be assured by the noble and learned Lord the Lord Chancellor that with this very small increase in the statutory limit he also has Treasury concurrence to judges actually being appointed within that limit.

Lord Morris

My Lords, the noble Lord, Lord Williams of Mostyn, makes a most telling and sensitively modulated and understated case for the injustices that occur through shortfalls in judicial time arising out of the shortages in judicial appointments in the High Court. However, it is my view—I suspect that it must be the view of others—that the cost of delivering the administration of justice has to be conceived of as a whole. The noble Lord, Lord Williams, must bear in mind that a diminution of taxpayers' funds being spent on legal aid might allow funds to be available for the appointment of senior judges or vice versa. It is fundamental to the role of government to avoid single issue politics and to consider cost priorities. That is my noble and learned friend the Lord Chancellor's horrendous problem. Those noble Lords who are disappointed by these orders cannot possibly have it both ways.

The Lord Chancellor

My Lords, I think that I detect no opposition to the approval of the draft orders and so anything more I have to say is really by way of supplement. I begin by assuring my noble and learned friend Lord Donaldson of Lymington that I hope to be in a position to see another Lord Justice in place immediately the order comes into effect.

I quoted from my noble and learned friend's last report as Master of the Rolls the phrase to which he referred in correspondence. He supplemented that and it will not surprise your Lordships to know that his memory of what he was asking for in correspondence is not overstated. When requests were made for staffing of the appeal office it was estimated in support of that application that five lawyers in the office would save the time of about two Lords Justices.

I endorse very much the view that the members of the Court of Appeal do a supremely important job supremely well and extremely willingly. I am very conscious—perhaps not quite as conscious as my noble and learned friend Lord Donaldson of Lymington—of the work that they do and I have had the opportunity of reviewing quite a lot of it in detail in the Appellate Committee of your Lordships' House. I know the high quality and care with which these judgments are prepared, and I think it would also be fair for me to say that one of the matters that continually attracts admiration from visitors is the extent to which the Court of Appeal is able to deliver immediate judgments on very complicated cases, and sometimes in areas with which the members of the court individually were not perhaps particularly familiar in practice but where they have been able to formulate their views quickly, clearly and well and deliver judgments even more rapidly than your Lordships' House is able to do.

I should also like to take this opportunity of saying what I have had an opportunity of saying in public from time to time—that I very much admire the way in which all the judiciary of Northern Ireland carry out their functions. I must say that I have the impression on the whole that the community in Northern Ireland respects the impartiality of the judges. I have heard comments from time to time on the justice process as a whole, but so far as the judges themselves are concerned my impression is that they command confidence.

It is my responsibility to advise Her Majesty on the appointment of judges in Northern Ireland. Your Lordships may rest assured that I do so on the basis of the talents and suitability of the individual in question. I am under no pressure from anyone to appoint members of a particular religious affiliation. Of course, I would not yield to such pressure, but it is fair to say that I am not under any such pressure from any quarter. Sense would dictate that one has to have some regard to that factor in the situation in Northern Ireland as a whole. But, as the noble Lord, Lord Fitt, knows well, there are Protestants and Catholics on the High Court Bench in Northern Ireland and I believe that that will continue. Certainly, when it comes to an individual appointment I seek to recommend appointment on merit alone.

The Lord Chief Justice of Northern Ireland and I have agreed that the extra judge will have the effect of making it possible generally to have three judges sitting at the Crumlin Road. He does not guarantee that it could be all the time because there are sometimes exigencies to be dealt with, but the idea is that there should be three High Court judges sitting at Crumlin Road.

The position so far as High Court judge power is concerned is as I explained it in the answer to an Unstarred Question by the noble Lord, Lord Irvine of Lairg, some time ago. I expect to receive the report of the committee quite soon and then I shall need time to consider its recommendations in detail.

I am aware of the matters to which my noble and learned friend Lord Ackner has referred, and one must take account of all the circumstances. The Government have to take account of all the pressures for resources these days, and at present my position is that I am able to put forward this order in respect of the Court of Appeal. Other matters in relation to the High Court will have to await the report of the working party to which I earlier referred.

The position so far as the Court of Appeal generally is concerned and the list has been described in the present report by the Master of the Rolls for the year ending 1992. He says there that there would appear to be only three ways of reversing the trend of increasing backlogs. The first is: To increase the number of cases heard by the Court in a year. Assuming that all divisions of the Court are fully listed … this would mean reducing the time spent on each appeal or on some appeals. Steps have already been taken in this direction (by providing time for pre-reading, and by submission of skeleton arguments)". This gives me an opportunity of paying a very warm and sincere tribute to the work in that direction which my noble and learned friend Lord Donaldson of Lymington carried out. A great deal was done under his chairmanship. The present Master of the Rolls goes on to end that paragraph by saying: Further steps are under consideration". The second way is: To reduce the number of appeals reaching the Court for full hearing". As has been mentioned, power to alter and require leave to appeal is in the Courts and Legal Services Act, and the present Master of the Rolls says: Experience suggests that this could be done"— that is to say, extending the present requirements for leave to appeal with minimal risk of excluding appeals with any chance of success". The third is: To increase the number of Lords Justices sitting in the Court of Appeal". He continues: Courses (ii) and (iii) are matters for political, not judicial, decision. And it seems unlikely that the problem can be solved by adoption of any single course in isolation. It seems likely that some combination of these three courses can alone offer the hope that the present disquieting trends can be reversed". So far as the other matters that have been raised are concerned, I think none of them would suggest that this order should not be approved. I therefore renew the Motion that your Lordships should approve this order.

Lord Donaldson of Lymington

Before the noble and learned Lord sits down, he has suggested that other steps would be taken by, for example, activating Section 8 of the Courts and Legal Services Act. Is he able to tell us that those steps are being taken, because I have asked for them to be taken for a very long time now?

The Lord Chancellor

As my noble and learned friend knows, we have discussed this a great deal. A lot of controversy existed about that provision. A degree of difference of opinion existed about it on the Cross Benches. As my noble and learned friend knows, I have had the intention of bringing forward proposals as soon as possible, and I believe that "possible" is becoming a good deal nearer than it was the last time we discussed it.

In conclusion, I should perhaps say, noticing the noble Lord, Lord Hylton, there, that so far as I understand the position it is not necessary for a judge who took the trial to sit in the Court of Appeal so far as the judicial manpower in Northern Ireland is concerned.

On Question, Motion agreed to.