§ 8.44 p.m.
§ The Lord Chancellor (Lord Mackay of Clashfern) rose to move, That the draft order laid before the House on 16th November be approved [1st Report from the Joint Committee].
§ The noble and learned Lord said: My Lords, the draft order is made under Section 1(1) (a) of the Administration of Justice Act 1968 and Section 2(1) of the Supreme Court Act 1981. It relates both to Lords of Appeal in Ordinary and Lords Justices. The Administration of Justice Act 1968 set the maximum number of Lords of Appeal in Ordinary at 11. The order now proposed will increase that number to 12. The statutory ceiling for Lords Justices in England and Wales was increased from 28 to 29 by the Maximum Number of Judges Order 1993. This order will further increase that number to 32.
§ I shall speak first of the proposed increase in the number of Lords of Appeal in Ordinary. Lords of Appeal in Ordinary are those Members of your Lordships' House appointed to hear and determine appeals. They also sit regularly in the Judicial Committee of the Privy Council.
§ In addition to their judicial work, Lords of Appeal in Ordinary are increasingly in demand for important public duties. Your Lordships will know, for example, that my noble and learned friend Lord Woolf is heavily engaged in the committee considering access to justice, and my noble and learned friend Lord Nolan has recently been appointed chairman of the Committee on Standards in Public LIfe. That is likely to occupy him fully for some time. Moreover, the Law Lords also play an important role in maintaining international judicial links both with other common law jurisdictions, particularly the Commonwealth and the United States, and with countries which have different legal traditions, especially our partners in the European Union. Those contacts bring considerable mutual benefit to us and the others concerned, and 687 we are finding that an increasing number of other countries wish to learn from the British experience. I regard that work as an essential part of the duties of the Lords of Appeal, although it means that from time to time individual Lords of Appeal are not available to sit.
§ At the same time, the judicial business of your Lordships' House and the Judicial Committee of the Privy Council shows no sign of abating. Indeed, petitions for leave to appeal to the House of Lords this year have already significantly exceeded the total of petitions presented last year and the indications are that the number of appeals presented will show a marked increase over the level of recent years. Moreover, perhaps surprisingly, the number of appeals to the Judicial Committee of the Privy Council remains buoyant.
§ There are at present 10 Lords of Appeal in Ordinary. In addition, the Lord Chancellor and Peers who have held high judicial office, often retired Lords of Appeal in Ordinary, may also sit judicially in your Lordships' House, and in the Judicial Committee of the Privy Council. Former Lords Justices and senior overseas judges also sit from time to time in the Judicial Committee of the Privy Council. Because of the commitments of the Lords of Appeal I have already mentioned, and for other reasons such as illness, it is often necessary to rely on retired Lords of Appeal to ensure that the judicial business proceeds with due despatch. I should like to express my gratitude to all those who, although no longer holding full-time judicial office, have sat to assist in the discharge of that business.
Your Lordships will also be aware of the Judicial Pensions and Retirement Act 1993 which is expected to come into force in the course of 1995. That Act will introduce a compulsory retirement age of 70 for all new judges first appointed once the Act is in force. It will also prevent any retired judge, including retired Lords of Appeal in Ordinary, from sitting beyond the age of 75, except for the purposes of completion of proceedings. That will in practical terms have the effect of limiting the number of retired Lords of Appeal and other judges who would then be able to sit on judicial business in this House or in the Judicial Committee of the Privy Council, or, as I shall be describing later, in the Court of Appeal.
§ The Government are concerned to provide the necessary flexibility to ensure that such senior and important courts continue to work effectively as well as to allow, where appropriate, Lords of Appeal in Ordinary to be available to undertake other duties in the public interest. Accordingly, we propose that two further Lords of Appeal in Ordinary be appointed, bringing the total number up to 12.
§ As I have said, the Administration of Justice Act 1968 at present provides for a maximum of 11 Lords of Appeal in Ordinary. Arrangements for the appointment of an eleventh Lord of Appeal are already in hand. If approved, the order would permit a twelfth appointment to be made.688
§ I turn now to the Court of Appeal. The court is served by the Lord Chief Justice, the Master of the Rolls and the Lords Justices of Appeal. The President of the Family Division and the Vice-Chancellor also sit there from time to time. The Lords Justices form the main judicial strength of the court, although High Court judges sit with them to hear criminal appeals and other cases. Under the Criminal Justice and Public Order Act 1994 there is also provision for circuit judges to sit in the Court of Appeal in certain circumstances. I hope to be able to bring that provision into effect in January 1995.
§ Since March 1993 there have been 29 Lords Justices in the Court of Appeal. The purpose of the draft order is to further increase that number by three to 32.
§ The principal reason for seeking an increase is the growing backlog of appeals and lengthening waiting times in both the criminal and civil divisions of the Court of Appeal. In order to alleviate problems in the criminal division an additional court has been sitting since January 1993 and a second additional court since April 1994. I am pleased to inform the House that, for the first time in a number of years, there has been an overall decrease in the length of time a defendant has to wait to have his appeal heard. The number of outstanding appeals has also been reduced over the last two years by over 900 cases to 2,644.
§ The overall aim is to reduce waiting times to six months for conviction appeals and to three months for sentence appeals. Despite the commendable progress already made, it may well be another year before the number of courts sitting in that division can return to four without disappointing consequences.
§ Such progress in the criminal division has been to some extent at the cost of the civil division as additional Lords Justices hearing criminal appeals reduces the number available to hear civil cases. It is, however, inevitable that criminal cases should take priority over other cases given that the liberty of the subject is often at stake.
§ In his review of the legal year, the Master of the Rolls observed that the difficulties in the civil division were unlikely to be overcome by the repeated enlargement of the court. Other measures have already been taken to stem the rise of unheard appeals in the civil division; for example, retired judiciary regularly augment the numbers of Lords Justices sitting in the Court of Appeal. However, as I explained, the Judicial Pensions and Retirement Act will apply equally to judges who sit in the Court of Appeal as to those who sit in the House of Lords or the Judicial Committee of the Privy Council and there will be a similar limitation preventing any retired judges aged 75 or over being able to hear appeals.
§ Furthermore, in an effort to prevent meritless appeals reaching a full appeal hearing and thus taking up the time of three Lords Justices, the requirement for obtaining leave to appeal was extended in October 1993 to a number of new classes of case. My officials are currently working together with the Administrative Committee of Lords Justices to identify further categories of case that would prove responsive to a 689 further extension of the leave filter. The categories have not yet been finalised, but any firm proposals will be put out to consultation in the usual way before implementation. Other possible methods to reduce waiting times are also being considered, including time limits for oral arguments and the increased use of written submissions.
Such work will inevitably take time and the pressures on the civil division are already acute. Across all the categories of appeals the average delay is around nine months. However, the average figure does not give the full picture. Priority cases, particularly those involving children, can be heard within three months, but other non-priority cases might have to wait up to 22 months. Such a level of delay causes difficulties as parties seek to have their cases moved into priority categories, and thereby expedited, if there is a long wait before their appeal can be heard. It follows that the more expedited cases there are the longer the delay for those appeals which are not in the priority category. According to long-term trends, the number of appeals set down is forecast to rise by around 1.5 per cent. each year. If the number of judges is not increased the backlog as we move into the next century will be approaching 3,000 cases, which equates to delays of around two years. Such delays are clearly unacceptable. Assuming that nothing else were done, the appointment of three additional Lords Justices would hold the backlog to around one year.
§ After careful consideration of the current and forecast workload of the Court of Appeal, I have concluded that three additional appointments are necessary at this time and will assist in the more efficient dispatch of business of the courts and that the House should further discharge its responsibility by approving the draft order. I commend the order to the House. I beg to move.
§ Moved, That the draft order laid before the House on 16th November be approved [1st Report from the Joint Committee].—(The Lord Chancellor.)
§ Lord Graham of Edmonton
My Lords, first, I apologise to the House and to the noble and learned Lord for the inability of my noble friend Lord Irvine of Lairg to be present tonight. He has been unexpectedly delayed. He has taken a deep interest in the matter and has raised it on more than one occasion. No animosity has been involved and I know that when he reads what was said by the noble and learned Lord he will be most pleased.
My noble friend will understand the case. I can listen to it and try to grapple with its intricacies. However, I am certain that the noble and learned Lord, Lord Ackner, will add to the good reception that I have given to the order. He too well understands the situation.
I have learnt from a number of quarters and sources that the noble and learned Lord the Lord Chancellor has met an acute need. That need could be eased only in this manner. I am well aware of protocol and of having to be careful before going overboard. I believe 690 that the balance and the timing are right. On behalf of my noble friend Lord Irvine and Members on these Benches, I give the order a warm reception.
§ Lord Meston
My Lords, I too thank the noble and learned Lord and wish to ask only one question. Is he prepared to lift the veil on the possible categories of appeal that are being considered as candidates for which leave might now be required?
§ Lord Ackner
My Lords, I too welcome the proposed order, which increases the maximum number of Lords in Appeal in Ordinary to 12 and the Lord Justices in the Court of Appeal to 32. I raise only three points on which I should be grateful for my noble and learned friend's comments. The first relates to the adequacy of the increased number of judges in the Court of Appeal. My noble and learned friend referred to the Court of Appeal (Civil Division) Review for 1993–94, copies of which were circulated to all Lords of Appeal past and present. It makes depressing reading. My first point relates to whether three is an adequate number to cope with the present situation.
In the conclusion, the Master of the Rolls states:Over the past three years the figures show a consistent and disturbing trend: a high level of appeals set down; a steady and significant increase in the number of applications set down; and a sharp increase in the backlog of unheard appeals and applications. The trend is disturbing because the delay in hearing appeals is already too long, and is perhaps at the upper limit of what is acceptable. If these trends continue and nothing is done, the delay will be altogether unacceptable and may be seen as a denial of justice".The Master of the Rolls pays tribute, as has my noble and learned friend the Lord Chancellor, to the considerable assistance of retired Lords Justices in dealing with the situation. In the words of the Master of the Rolls, they have given "valuable service". In his report, the Master of the Rolls identifies those retired Lords Justices. They are nine in number. If and when—and I suppose that it is when—the Judicial Pensions and Retirement Act is brought into force, of those nine, four will be immediately disqualified because they are over the age of 75. Of the remaining five, four are approaching 75; some are a year away, some two or three years, but all are approaching 75.
I appreciate that in due course there will be those who will retire from the Court of Appeal and who will, subject to age, make their services available. However, in view of the disturbing observations made by the Master of the Rolls in his report, and in view of the impact of the Act, when it is brought into force, upon the availability of retired Lords Justices to continue to provide such valuable assistance, I wonder whether three is enough to deal with the present depressing situation.
Secondly, my noble and learned friend referred to the fact that, in addition to increasing the number of judges, obviously thought will be given to reducing the time spent on oral argument. The Master of the Rolls says in his conclusions:It appears to be inescapable that in this country, as in other common law jurisdictions, steps will have to be taken to curtail the time allowed for oral argument, with greater reliance on 691 written submissions. The saving of time in court will of course be off-set by the need to devote more time to perusal of written materials out of court, but experience elsewhere indicates a saving of time and an increased rate of disposal of business overall".I now turn to the part of the conclusions that I wish to stress:In other common law jurisdictions increased reliance on written materials has demonstrated a need for the judges to receive professional legal assistance, usually obtained (at relatively modest expense) from the ablest young law graduates; this also may prove a desirable, if not a necessary, innovation here".As my noble and learned friend knows, when I was sitting as a Law Lord my opposite number in the Supreme Court of the United States had three assistants to help him. Indeed, each member of the Supreme Court had three such assistants. I believe that the same applies in Canada and Australia. I do not know whether my noble and learned friend can confirm that serious consideration is now being given to the question of providing legal assistants, especially if we are to move more towards the restriction on oral argument.
My third and last point relates to another disturbing feature of the report. On page 9, there is a reference to "Figure 7", which shows,the total number of applications set down in the year under review and, in the lower line, the number of applications made by litigants representing themselves".The report then continues:It will be seen that in 1989–90 scarcely more than one applicant in ten acted in person, whereas in the past year the proportion of such applicants has approached one third of the total".The Master of the Rolls observes:In most instances litigants representing themselves are inevitably unfamiliar with legal procedures and lack the expertise needed to prepare the case for hearing by the Court, to give a clear account of the relevant narrative, to identify the legal issues for decision and to present argument to the Court".The Master of the Rolls concludes:While the staff of the Court do their best to give guidance on procedure, and helpful explanatory leaflets have been prepared, the conduct of cases by personal litigants greatly increases the burden on the lawyers and administrative staff who work in the Civil Appeals Office and on the members of the Court in seeking to elicit the relevant facts and identify the relevant issues".It must be the case that this, to quite an extent, is the product of the very savage cuts in legal aid. I wonder whether my noble and learned friend will bear that in mind when considering to what extent those cuts can be ameliorated.
§ 9 p.m.
§ The Lord Chancellor
My Lords, I am grateful for the support from all speakers for the Motion that I have moved. It remains for me to seek to deal with the matters raised. The noble Lord, Lord Meston, raised the question of whether I can give any information about the classes of case being considered as regards the application of a filter. As is known, we have already dealt with one tranche of that.
So far as concerns the second tranche, I am considering it at present with the Administrative Committee of Lords Justices. Indeed, I mentioned that 692 my officials have had a meeting with the committee. Whenever we reach a view about what classes of case are appropriate, I shall put out a consultation document which will set them out in detail and ask for views upon them. I shall do so before operating the powers given under the statute to modify the classes of case which require a filter. At the present stage of the discussion, it would be premature to reach any conclusion. In fact, I have not reached any conclusion myself on the matter, as I am still in discussion with the Lords Justices.
My noble and learned friend Lord Ackner raised three questions. I take the view that, so far as concerns the present situation, the increase by three judges is reasonable. We shall of course have to keep the situation in the Court of Appeal under review and the effect of any other action that the court may think it proper to take in relation to the matters with which the Master of the Rolls dealt. The Master of the Rolls made it clear that, in his view, repeated extensions of the size of the court would not be a suitable solution to all the problems experienced by the court. I believe it right at present that we should ask for three judges and then see how matters develop.
Secondly, my noble and learned friend pointed out that the Master of the Rolls raised the question in his report of curtailing oral argument. I have already made arrangements for legally qualified staff to be in the office of the civil division of the Court of Appeal. That was an innovation of a year or two back. Obviously, the precise number of such staff at any time will also be a matter which we shall keep under review.
My noble and learned friend referred to his opposite number in the Supreme Court of the United States when he was a Lord of Appeal in Ordinary, who had three assistants. It is fair to say that the number of cases disposed of by the Supreme Court in the US in a year is rather more, although the method of working is different. I certainly intend to keep under review the legally qualified members of the staff of the civil division in the Court of Appeal in the light of developments that the court may decide upon in relation to the issue of curtailing oral argument.
In so far as the third point is concerned, the Master of the Rolls has pointed to an increase in the proportion of those who represent themselves, as between 1989 and the present day. I do not think that that is attributable to any substantial extent to the changes in eligibility for legal aid which were made last year. I think that this is a tendency which has a number of causes. I certainly intend to keep very closely under review the question of whether or not the legal aid changes have affected this matter. However, one of the complaints that I have heard from the previous holder of the office of Master of the Rolls was that he found from time to time that legal aid was granted too readily for appeals that were not with merit in the Court of Appeal and he wondered about steps to deal with that. It may well be that steps to deal with that have had an effect on the number of people who represent themselves in this manner.
693 However, these are all matters that I would wish to keep under review but, in the meantime, the order, the draft of which is before your Lordships, is, I think, agreed on all sides to be an important step in the right direction. I renew my Motion.
§ On Question, Motion agreed to.