§ 7.38 p.m.
§ The Lord Chancellor (Lord Mackay of Clashfern) rose to move, That the draft order laid before the House on 21st April be approved [27th Report from the Joint Committee].
§ The noble and learned Lord said: My Lords, the order is made under Section 4(4) of the Supreme Court Act 1981 and amends Section 4(1) (e) of that Act so as further to increase the maximum number of High Court judges. If approved, it will come into force on 13th May 1993.
§ I should explain that the Supreme Court Act 1981 sets at 80 the maximum number of High Court judges. That number was increased to 85 by the Maximum Number of Judges Order 1987. The order now proposed would increase that maximum number to 98. The number of High Court judges increased from 77 in April 1988, shortly after I took office, to 85 in May 1992, though the number of holding appointments has fluctuated around that number since then because of promotions and retirements.
§ In considering the justification for a further increase in the number of High Court judges, I hope it may be helpful to set the matter in the context of the 1049 demands on all the jurisdictions in which High Court judges sit and in particular to the advice of the group of senior judges and officials chaired by Lord Justice Kennedy and constituted to advise myself and my noble and learned friend the Lord Chief Justice on the work, deployment and numbers of High Court judges.
§ As there was a degree of difference in the waiting times and the backlogs in those jurisdictions, and there were a number of areas causing concern, my noble and learned friend and I decided last summer that a group of senior judges and officials be constituted and tasked to provide urgent advice on the work, deployment and numbers of High Court judges. I should emphasise that that was a major, complex task and that there was no ready or serviceable means of otherwise identifying the required number of additional judges.
§ After defining the issues to be addressed and the information required during the summer break to take forward the review, the group's first meeting took place on 5th October 1992 and Lord Justice Kennedy commissioned material from members of the group and from other members of the judiciary having responsibility for or knowledge of specialist High Court jurisdictions. The group met frequently before Christmas to consider the evidence it was gathering and again during January 1993 to finalise its report. The report was presented to the Lord Chief Justice and myself on 10th February and our intention to appoint the additional judges was announced, first, in another place on 5th March.
§ The report of the group is available in the Libraries of both Houses so I shall not dwell in detail on its content. However, in summary, the group considered the main strands of High Court judges' work and saw the immediate purpose of its review to address means of relieving the pressure affecting the justice system. Having concluded early on that there was a continuing need for the High Court Bench to provide a pool of more able judges to try the more serious cases both in London and on circuit, the group examined each strand and considered whether the criteria for identifying work suitable for High Court judges could be improved, procedural or jurisdictional improvements that might be made and also flexible methods of deployment for them to undertake that work.
§ From an examination of the strands it was concluded that additional judge power was required to reduce delays and backlogs of cases in the Chancery Division, the Court of Appeal Criminal Division, the Crown Office List and the Employment Appeal Tribunal and to maintain the appropriate judicial strength of the Commercial Court.
§ The group identified a need for between 10 and 13 additional judges to be appointed. Appendix 21 of the report recommended further inquiry and that the work which should be heard by High Court judges should be kept under review, having regard to the need to maintain the High Court Bench as a compact collegiate body. Assistance for deployment to meet agreed priorities should be kept under review to ensure that, so far as possible, High Court judges are reserved for hearing only the most serious, complex or 1050 sensitive cases, and consideration should be given to the information system needed to support those aims and to determine the number of High Court judges needed at any one time.
§ My noble and learned friend and I agreed that the further work based on that appendix should be put in hand. At its most basic the further work is aimed at ensuring that demands for further judge power are based on appropriate levels of productivity and increases in workload and will be subject to a thorough investigation to be completed as a matter of priority. For the meantime, my noble and learned friend and I agreed that 10 new appointments are sufficient to relieve current pressure on the High Court Bench. After the 10 additional appointments have been made, no more judges will be appointed until the further work is completed. However, there will be headroom for a further three appointments so that if additional appointments are needed swift action will be possible without recourse to Parliament and the Privy Council.
§ This order was approved in another place on 4th May and, subject to your Lordships' approval tonight, the additional appointments will be made as soon as practicable. I commend the order to your Lordships.
§ Moved, That the draft order laid before the House on 21st April be approved [27th Report from the Joint Committee].—(The Lord Chancellor.)
§ Lord Irvine of Lairg
My Lords, we welcome the regulations from these Benches. They give us particular satisfaction because on 22nd October last I asked in an Unstarred Question what action the Government would take to ensure that there were sufficient High Court judges to transact the business of that court. I hope that the resultant debate strengthened the hand of the noble and learned Lord in a battle which I do not doubt must have taken place with the Treasury for the allocation of scarce resources. In this case the corner that the noble and learned Lord had to fight was for prompt access to justice. I hope that the uniform opinion of those contributing to that debate—that a major cause of much of the delay in the administration of justice in the High Court was too few judges—strengthened him in making the case for the 13 additional judges that the regulations sanction.
There are many questions which noble Lords will be interested to have answered. As I understand the noble and learned Lord, it is likely that in the immediate future 10 appointments will be made, leaving headroom for three more. What impact is it estimated that the new appointments will have on the use of deputy High Court judges in the High Court? Deputies have recently been used to an unacceptable extent. It has meant that many cases have been tried beneath the levels thought appropriate by Parliament, and, indeed, by the noble and learned Lord himself, and in relation to individual cases beneath the level which the Master or the district judge thought appropriate.
The extensive use of deputies devalued the role of the deputy, which is to afford an opportunity for genuine candidates for the High Court Bench to prove 1051 their worth, not to alleviate delays due to an inadequately staffed full-time Bench by engaging deputies who are not in any realistic sense candidates for permanent appointments. My question therefore is, what impact is thought to be likely on the use of deputies from these new appointments that are in prospect?
Perhaps I may also ask the noble and learned Lord what further thought has been given to whether it would be possible to define with greater precision the criminal and civil cases which either should or should not be tried by High Court judges. For example, could suitably experienced circuit judges try murder and rape cases which do not involve unusual public concern indicating the need for trial by a High Court judge? Is there scope for having nominated circuit judges of great experience in the field of sentencing sit from time to time in the Criminal Division of the Court of Appeal? Does the noble and learned Lord think that there is scope for the trial of defamation actions in the county court? In short, does the noble and learned Lord have currently under consideration any proposals for re-allocating specific types of business to different levels in the judicial hierarchy on the basis that there should be a continuous assessment of what cases are of such public concern or so serious and complex that they should be the exclusive preserve of the High Court judges?
I ask those questions, but in fairness this is an occasion for welcoming an achievement by the noble and learned Lord. He faces strong criticism from these Benches on a range of issues, not least for what he has allowed to happen to legal aid. But that is another subject for another day. Meanwhile, we from these Benches give credit where it is due and welcome the regulations.
§ Lord Taylor of Gosforth
My Lords, in the 12 months since I was introduced into this House my interventions have been, I hope the House will agree, mercifully few. But unhappily they have mostly been critical of measures which my noble and learned friend on the Woolsack was proposing or in regard to measures which he was not proposing. I am glad therefore to be able tonight to support and welcome wholeheartedly the order which he has laid before the House. It has been a long haul, begun by my predecessor and pursued by myself and others, including the noble Lord, Lord Irvine of Lairg, to secure the appointment of more judges to cope with the increased workload now carried by the courts.
As the noble and learned Lord the Lord Chancellor said, he and I jointly set up a committee to study and report to us on the deployment of judges. The report of the committee showed that there was an immediate need for more judges to be appointed. I must express my thanks to my noble and learned friend the Lord Chancellor for acting very swiftly on receipt of that report to take the steps necessary to enable this order to be laid. I hope that the 10 additional judges proposed to be appointed in the very short term will be in post by autumn of this year. They will be deployed to meet pressing needs.
First and foremost, the backlog of criminal appeals and applications for judicial review must be reduced. 1052 The Commercial Court needs to be brought up to full judicial strength. There are delays in the Employment Appeal Tribunal which should be reduced and the Chancery Division also has serious arrears. These matters, in my judgment—I know that my noble and learned friend on the Woolsack agrees—must take priority over reducing the number of deputies, although I hope that in due course we shall be able to reduce our reliance upon deputies to try cases which should properly be tried by full-time judges. I hope that with the 10 additional judges we shall be able to reduce the arrears and ease the immediate pressures in the various fields I have mentioned. I repeat my gratitude for this very welcome order.
§ Lord Donaldson of Lymington
My Lords, lest it has not been said previously today, may I express the personal relief and pleasure that I feel that the noble and learned Lord the Lord Chancellor has safely returned from Northern Cyprus. Turning to this Motion, I add my congratulations to him on having obtained the agreement of colleagues, and of the Treasury in particular, to this long overdue increase in the strength of the High Court Bench. I shall not burden your Lordships with elaborating on those congratulations and would like to add only one word—not perhaps in any critical sense but to put down a marker; namely, in relation to the use of deputy High Court judges.
Even with 10 additional High Court judges it will, I have no doubt, be necessary to continue to use deputies on the present scale if the backlog is to be reduced, but the present scale really is rather staggering. I have been through today's causes. There are 34 High Court judges sitting and 22 deputies, of whom 15 are county court judges. If we are to maintain the distinction between the High Court and the county court—consideration was given to abandoning it and having a national court but that has been rejected as a policy—as the Courts and Legal Services Act 1990 clearly intends that it should be maintained, then High Court work must be undertaken by High Court judges save in temporary emergencies when it would be appropriate to bring in deputies.
Perhaps I may utter one minor word of dissent to something that was said by the noble Lord, Lord Irvine of Lairg. I really do doubt whether it is a proper function of a deputy High Court judge to be on trial as to his abilities to be a full High Court judge. There are other ways of finding out whether he would be suitable in a judicial capacity. The difficulty about it was highlighted, if that is the right word, by the late Mr. Justice Melford Stevenson, who, commenting on the use of divorce commissioners many years ago, described them as High Court judges on sale or return. There is an element of truth in that. It is an invidious position for a deputy High Court judge to be in. It does not arise at present because the numbers are such that that must be the least of the considerations. But I venture to suggest that they should not be used except in cases of emergency, a sudden surge in the work of the court, illness or something of that kind. 1053 Otherwise, as I say, we shall have a national court by a back-door. I again repeat my congratulations to the noble and learned Lord.
§ Lord Ackner
My Lords, I readily join in the rejoicing at this Motion to increase the number of High Court judges significantly in the manner proposed. However, I think I would be doing the House a disservice if I were party to a rejoicing that masked the very serious constitutional concerns that lie behind this long delayed and much overdue order.
In his foreword to a pamphlet on judicial appointments, my noble and learned friend Lord Hailsham, then in his capacity as Lord Chancellor, said that,the quality of justice is largely determined by the quality of the judge who presides".The role played by the High Court judge is, par excellence, absolutely crucial to the quality of the administration of justice. I make the following points. The High Court Bench ensures, by the process of judicial review, that, inter alia, inferior courts and tribunals, local authorities and the Executive branch of the Government comply with the law. The High Court Bench is thus much involved in maintaining the delicate balance achieved over the centuries between the power of the legislature, the Executive and the judicature. I characterise that balance as delicate, since, unlike many other common law jurisdictions, the independence of the judiciary is not protected by way of a written constitution and in those circumstances it cannot be taken for granted.
Secondly, the High Court Bench provides the 12 presiding judges who, each for a period of four years, are responsible to the senior presiding judge, and ultimately to the Lord Chief Justice, for the proper functioning of the six circuits. This was an invention by Lord Beeching in his report. Since his report gave very considerable extra power to the executive—the Lord Chancellor's Department—this was a means of ensuring that bureaucracy did not take over the entire administration of justice.
Thirdly, High Court judges preside over the heavy criminal and civil cases and provide the specialist input for jurisdictions such as the Commercial Court, the Admiralty Court, company and revenue matters, patent, insolvency and the like. Fourthly, they play an important role in the Parole Board, the Employment Appeal Tribunal, the Judicial Studies Board and the Law Commission.
It was thus astonishing that, at least for the past four years, there has been a plain, incontrovertible and yet unsatisfied need for a substantial increase in the number of High Court judges. This need has been stressed again and again to the Lord Chancellor.
My noble and learned friend Lord Lane, as Lord ChiefJustice, became so frustrated and exasperated by the failure to remedy the situation that nearly two years ago, in a public speech at the banquet given by the Lord Mayor of London to the judges, he spoke of this being "a critical situation" and of the administration of justice being "in peril". He gave facts and figures to support those propositions. Not long later, the noble Lord, Lord Mishcon, on 15th 1054 July 1991, asked a Starred Question on the subject. In the course of the discussion my noble and learned friend Lord Oliver of Aylmerton drew attention to this overuse of deputies. I say "overuse" because he drew the House's attention to the power that the Lord Chancellor has under Section 9(4) of the Supreme Court Act 1981 to use deputies. They are to be used under the statute as a temporary measure, and not as a regular and consistent policy, which the Lord Chancellor accepted had been the case long before he became Lord Chancellor and has continued over the years since.
Last July (that is nearly a year ago) very soon after his appointment as Lord Chief Justice, my noble and learned friend Lord Taylor himself publicly, in a speech in the Mansion House—at the self-same Lord Mayor's dinner and only a year later—drew attention to the situation which had not been remedied. A debate, initiated, as has already been pointed out, by the noble Lord, Lord Irvine of Lairg, was attended by my noble and learned friend the Lord Chief Justice. He there drew attention to the intolerable delays in the Court of Appeal (Criminal Division), in judicial review proceedings and in the Commercial Court. He said in terms that it would become a "national disgrace" if the matter was not remedied very quickly.
As I understand it, it is not going to be remedied for a year following that speech.
In that debate I expressed my perplexity and puzzlement at the situation in these terms: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'".—[Official Report, 22/10/92; col. 890.]Following that debate, a wholly unusual event occurred; namely, a delegation to my noble and learned friend the Lord Chancellor, led by the Lord Mayor of London—such was the anxiety of the City in regard to the state of the Commercial Court. The judge in charge of the Commercial Court had spoken publicly of how that court was failing in its vital object to give expeditious hearings on matters of considerable moment. I am also instructed that pressure was brought to bear (I know not with what result) on the DTI in order that the situation might be remedied.
I have already expressed my delight that subsequently it has been accepted that the number proposed by the judges in their report has been acceptable. I do not believe that this situation would have arisen 10 years ago or even less, but today the Treasury diktat is almost unstoppable. It must have come as a surprise to many of your Lordships to hear my noble and learned friend the Lord Chancellor, during the debates on the Judicial Pensions and Retirement Bill, supporting a measure which would have reduced by 90 per cent. the pension which a judge 1055 who became disabled on his first year would enjoy, and, by the same 90 per cent., the pension which his widow would have achieved if he had died that year.
Under considerable pressure, but only on Third Reading, my noble and learned friend the Lord Chancellor modified that position, but only to the extent of providing for the sickness and early death of judges one-half of that which is provided to Members of Parliament under recent arrangements.
I have recently had drawn to my attention a very impressive and somewhat glossy prospectus issued by the Lord Chancellor's Department headed A Programme for the Future. It looks as if it might have cost a judicial salary or two to prepare. It is recorded at the foot of page three:As the head of the judiciary, the Lord Chancellor is at all times concerned to safeguard the judiciary's … independence from the other branches of Government".It is with the greatest regret that I have to say that I very much doubt whether that is the present perception of the judiciary.
I make this intervention because what is being provided for at the moment is only to relieve the current pressure. It pays no regard to three matters which have been raised. One is the increased demand for judges as the result of the increased applications for judicial review which everybody accepted would result from the new asylum Bill. Secondly, there is the increased demand on judges as a result of the alteration of legal aid eligibility which will result in many more cases being undertaken by litigants in person. We were told not long ago that 20 per cent. of the Court of Appeal's work is now currently taken up by litigants acting in person. Finally, there are the consequences of the Judicial Pensions and Retirement Act and its provisions which provide that no one, having reached 75 years of age after the provision comes into force, can any longer sit as a judge.
Therefore, I foresee that there will be further applications for extra judges. I make this intervention in the earnest hope that history does not repeat itself.
§ The Lord Chancellor
My Lords, I am grateful to those of your Lordships who have supported this order in unequivocal terms. The situation of my Office is one which I consider to be important in relation to the preservation of the independence of the judiciary. I do not wish to comment in any detail on what my noble and learned friend Lord Ackner had to say about that, except that I have endeavoured to perform the duties of my Office to the very best of my ability.
On the subject matter of this order, I have had negotiations with my noble and learned friend the Lord Chief Justice, as he made clear. The result was to set up a committee consisting of judges of the Court of Appeal and of the High Court along with officials from my department, to study this intricate problem and to tell us what the correct number was to which the High Court judicial complement should be raised. That is not a simple question. The size of the report and the nature of the investigations they made in order to reach that demonstrates that very clearly. It is simplistic to suggest that I could have arrived at that by myself without any judicial co-operation. It has not been my habit to go into confidential conversations 1056 between myself and the Heads of Division past or present, but I could, of course, do that to protect myself if I thought it wise. However, I do not believe that it is appropriate for me to enter into these discussions in public to detail what has taken place between us. I have always respected that confidentiality and I believe that it is appropriate that I should do so.
Perhaps I may turn now to the questions that were raised about deputies by the noble Lord, Lord Irvine of Lairg, and my noble and learned friends Lord Donaldson of Lymington and Lord Ackner. My noble and learned friend Lord Ackner referred to the statutory provision about the temporary use of a deputy. As I have explained before, that does not apply to the use of circuit judges. It is wrong to lump together circuit judges sitting as judges of the High Court and those who sit under the temporary provisions as deputies. Your Lordships who are very familiar with the statutory provision would, I am sure, wish to observe that distinction.
My next point is that my noble and learned friend the Lord Chief Justice and my colleagues, the Heads of Division, are all agreed that the highest priority is to reduce the backlogs, and the new appointments will be used primarily for that purpose. Difficult questions remain, as the noble Lord, Lord Irvine of Lairg, pointed out, about the precise boundary between those cases which should be tried by High Court judges and those which are appropriate for circuit judges. That is a matter, particularly in the criminal field, that will be examined under the arrangements that I have made with my noble and learned friend the Lord Chief Justice for continuing work.
As those of your Lordships who have read Lord Justice Kennedy's report will have seen, there have been discussions about the question of whether experienced circuit judges might not be appropriately invited to sit as part of a team in the Criminal Division in the Court of Appeal. That cannot happen under the present statutory provisions, as the noble Lord is aware, but the question was raised and is for consideration. Many circuit judges have very considerable experience, particularly in sentencing, in areas with which the High Court judges are more familiar only on appeal.
The final question that I was asked on this aspect relates to defamation actions in the county courts. This question arose during consideration of the Courts and Legal Services Bill. I said then—and I remain of this view—that when the procedures for defamation are simplified (as they are in the course of being) a wider use of the county courts for actions of defamation seems perfectly feasible.
Those are the main matters that have been raised. I understand the observation of Mr. Justice Melford Stevenson about "sale or return"—graphic as always. I think that it has been accepted that it is wise for someone who is being contemplated as a possible judge of the High Court to serve as a deputy under the statutory provisions and to assist in dealing with current cases. I believe that that has been found useful.
I understand that I have your Lordships' support for the Motion and propose to—
§ Lord Donaldson of Lymington
My Lords, before the noble and learned Lord sits down, I wonder whether he can help me with one point. I appreciate the distinction between Silks, practitioners who are brought in as deputies, and county court judges who sit as judges of the High Court. There is a definite distinction. Within the Crown court, they are all judges of the Crown court, so there is obviously a case for deciding which circuit judges can try which county cases. Of course, there are circuit judges who can try murder cases. Within the High Court, is the noble and learned Lord really saying—perhaps he is—that for a county court judge to try a High Court case is a normal and acceptable situation, because that seems to me to destroy at a stroke the difference between the county court and the High Court?
§ The Lord Chancellor
My Lords, Parliament has provided a quite different regime for circuit judges—not county court judges any more—sitting in the High Court and when they do so, they sit as judges of the High Court. There is no question of "temporary" in the phraseology that provides for it. On the other hand, where deputies are provided for, it is on the understanding that their commission is temporary. It does not necessarily mean, I think, that the use of deputies as a whole is temporary, but it does mean, I think, that each deputy is not on a full-time commission, but is on a temporary commission.
As my noble and learned friend will know, it has been the practice that certain circuit judges are thought to be suitable for sitting from time to time as High Court judges and the allocation of cases to them is made by my colleagues, the senior judiciary, from day to day in the High Court. Those arrangements have been found suitable. I think that it is possible to have a degree of flexibility between the circuit Bench and the High Court Bench at the same time as preserving the distinction of the High Court. As my noble and learned friend Lord Donaldson knows full well, special provisions relating to the commercial court distinguish it from the others. A degree of flexibility is required in this matter and I am content that that is exercised wisely from day to day by my colleagues who sit in the Royal Courts of Justice. At the moment, it is usually the Deputy Chief Justice who makes such decisions on behalf of the Lord Chief Justice. The precise nature of the arrangements may vary with the day-to-day arrangements which my noble and learned friend the Lord Chief Justice may make.
I think that this is a reasonably satisfactory arrangement which, while maintaining the broad distinction between the two, leaves the control in the hands of those with responsibility for the High Court.