HL Deb 26 March 1996 vol 570 cc1640-5

The Lord Chancellor (Lord Mackay of Clashfern) rose to move, That the draft order laid before the House on 18th March be approved [14th Report from the Joint Committee].

The noble and learned Lord said: My Lords, I beg to move the Motion standing in my name on the Order Paper.

The draft order is made under Section 2(1) of the Supreme Court Act 1981. The statutory ceiling for Lords Justices in England and Wales was increased from 29 to 32 by the Maximum Number of Judges Order 1994. This order will further increase that number to 35.

Your Lordships will recall that when the Maximum Number of Judges Order 1994 was debated in this House in November 1994, I was asked whether the appointment of three extra Lords Justices would be sufficient to deal with the increasing workload. I said that I thought the three extra appointments would prove sufficient but that I would keep the situation closely under review.

During the past year the situation in the Civil Division of the Court of Appeal has worsened. The number of outstanding appeals rose from 1,619 to 1,833 in the legal year to September 1995. As a result, waiting times in the court have continued to lengthen. Priority is given to child cases and other appeals which need to be heard urgently, but other non-priority appeals such as from the Chancery or Queen's Bench Divisions can expect to wait 18 to 20 months for a hearing. I consider that level of delays to be unacceptable.

Measures have been introduced during the past year to help reduce the delays, but the early signs are that these alone will not solve the problems, particularly in the short term. The leave to appeal filter was extended to a further six categories of case in October 1995. Those filters help to control the number of cases proceeding to full appeal by weeding out those appeals which have no prospect of success. But leave filters also generate more applications which take up valuable judicial time. The number of applications for leave to appeal have doubled to 1,649 in the past two years and are likely to increase further as a result of the latest extension to the leave filters. Because the court is still hearing appeals lodged before the introduction of the leave filters, the benefit of fewer appeals going to full hearing will take time to work through the system.

Fixed time limits for oral arguments were introduced in July 1995 with the intention of reducing the hearing time of certain categories of appeal. The additional benefits of this initiative may be marginal because the shorter the time judges spend in court listening to arguments, the longer the time they will need to spend out of court in preparation.

Waiting times in the Court of Appeal (Criminal Division) have remained constant in the past twelve months and are currently 10.9 months for conviction appeals and 5.4 months for sentence appeals. However, the number of appeals being lodged are steadily increasing and to prevent waiting times increasing, it will be necessary to maintain the current level of sittings. I believe that criminal cases should take priority over other cases given that the liberty of the subject is often at stake and it will not be possible to reduce sittings in the Criminal Division to provide relief for the Civil Division.

I do not believe that I can wait to see the full benefit of the measures taken in the past 12 months before taking further action. The Master of the Rolls and I agree, however, that we cannot overcome the difficulties in the Civil Division by the repeated enlargement of the Bench. I have therefore agreed with the Master of the Rolls that the only viable long-term option is for there to be a review of the civil appellate procedure. The review will start within two months of the publication of the report of my noble and learned friend Lord Woolf's review of the civil courts. It is expected that this report will be published in late July or August. I hope to announce the terms of reference for the review by the end of April.

The review of the appellate procedure will take time to formulate and then implement its proposals. I am anxious, however, to provide some immediate relief to help stem the rising number of outstanding appeals in the Civil Division and would therefore wish to appoint three additional Lords Justices as soon as possible. I commend the order to the House.

Moved, That the draft order laid before the House on 18th March be approved [14th Report from the Joint Committee].—(The Lord Chancellor.)

7.30 p.m.

Lord Irvine of Lairg

My Lords, I welcome the order. As the noble and learned Lord said, its object is to reduce delay and to reduce the backlog of appeals waiting to be heard in the Civil Division of the Court of Appeal. Justice delayed is justice denied. I understand that delay generally in waiting for civil appeals to be heard in the Court of Appeal is perhaps a little longer than the noble and learned Lord indicated—as long as 18 months to two years. That is unacceptably long. Of course the queue can be jumped in urgent cases; for example, cases concerning children or urgent public law cases. But expedition in those urgent cases pushes other appellants down the queue.

Waiting time is far too long. Delay of this order means that the state is failing to provide prompt and efficient access to justice. The Master of the Rolls, Sir Thomas Bingham, described the problem pungently in his annual Review of the Legal Year 1994–1995. He began his review with the devastating first sentence: The delay in hearing certain categories of appeal in the Civil Division of the Court of Appeal has reached a level which is inconsistent with the due administration of justice". He continued, This predicament should come as no surprise. Reporting on the year ended 30 September 1991, when the backlog of unheard appeals stood at 1136, Lord Donaldson of Lymington"— the predecessor of the present Master of the Rolls, Sir Thomas Bingham— described the emerging picture as 'depressing' and warned that if changes were not made the next report was likely to be considerably more gloomy than that one. It was. By September 1992 the backlog had risen to 1195. I reported that Lord Donaldson's pessimistic prognosis had been borne out. I indicated the steps which I considered necessary if the present disquieting trends were to be reversed. In the following year I had to report that these disquieting trends had not been reversed. The backlog of unheard appeals had by then risen to 1399. Despite hearing more appeals, the Court had lost ground over the year, continuing the trend of previous years. Last year I reported that the year ended September 1994 had seen a sharp increase in the backlog of unheard appeals. The total by then stood at 1619. I reported: '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'. During the year 1 October 1994–30 September 1995 the backlog of unheard appeals has risen to 1833. The Court has had to announce publicly that in certain categories of case it can only plan"— the Master of the Rolls underlines the word "plan"— to hear 70% of appeals in such categories within about 18–19 months of setting down. On current projections the backlog appears set to continue steadily. These projections have been vetted by a professional statistician in the Lord Chancellor's Department. There is some reason to fear that these projections paint too favourable a picture. There is little or no reason to think that they paint too gloomy a picture. They suggest that by the year 2000 the backlog will have risen to 2234. These projections appear at page 12 of this Review". That is a devastating description of inordinate and unacceptable delay in appeals to the Court of Appeal by the head of that court, the Master of the Rolls, who has no political axe to grind. He continued, Secondly, the judges of the Court have exerted constant pressure to limit oral argument in court to the bare minimum necessary for just decision-making. The oral recital of facts has been eliminated; the reading aloud of documents and authorities has been cut to the bone. Greatly increased reliance has been placed on written summaries of argument. On 26 July 1995, following detailed consultation with the Court of Appeal Users' Committee (representing judges, banisters, solicitors and the Citizens' Advice Bureaux), a Practice Statement and Practice Direction were promulgated: these were intended to streamline existing procedures and fix time limits where practicable. They do not restrict oral argument within the very tight limits familiar in American and continental courts, but are judged to represent as great a change as is currently feasible. It must also be remembered that summary oral hearings have a price: only a judge who has comprehensively mastered the relevant materials before the hearing can fairly conduct it in a summary way. The shorter the time spent in court listening to argument, the longer the time spent out of court in preparation. It is also becoming clear, as experience throughout the rest of the world demonstrates, that if judges are to prepare themselves adequately for very brief oral hearings, they must each be afforded (as at present they are not) some skilled professional assistance". I can confirm that the Master of the Rolls, in the passage which I have just read, makes a highly significant point. It is right that the time spent on oral argument on appeal should be reduced so far as possible, consistent with no diminution in the quality of justice. The quality of justice at this level critically depends upon the interchange in oral argument between counsel and court on the key issues at stake. But if as much legal argument as possible is to be presented to the court in writing in advance of oral hearings, then two things follow which I do not doubt the noble and learned Lord on the Woolsack will accept.

First, more judicial time must be spent out of court in studying written submissions and also in studying the judgment of the court below, the transcript of evidence in the court below and all the issues in the case so that all three Lords Justices hearing the appeal are as informed about all the ramifications of the appeal as are counsel who put it forward and resist it. That has obvious resource implications.

Secondly, as the Master of the Rolls suggested, the Lords Justices may need the assistance of highly qualified law clerks, as in the United States system, to assist them to deal effectively with abbreviated oral hearings. That too would have resource implications and I would welcome the noble and learned Lord's comments on that specific suggestion. Those realistic suggestions of the Master of the Rolls chime with the recognition of the noble and learned Lord, Lord Woolf, that there are resource implications too in his plans to streamline civil justice as set out in his interim report to the noble and learned Lord, Access to Justice, in June 1995.

I welcome the order, therefore, as a step in the right direction. But I make two basic points. First, the present delays in the hearing of appeals in the Court of Appeal are unacceptable in the public interest. The delays are emphatically not the fault of the court, which I am sure the noble and learned Lord will confirm is as hardworking as any in the country; it is a consequence of judicial undermanning. It is the responsibility of government to remedy judicial undermanning. Secondly, I shall be interested to know, if three more Lords Justices are appointed under the order, what precise impact the noble and learned Lord estimates it will have on the backlog.

I repeat that I welcome the order. I am anxious not to be mean-spirited and to say "too little, too late". But we are entitled to know whether the noble and learned Lord is of the opinion that this order and the creation of three further Lords Justices are sufficient, in his judgment, to ensure the expeditious disposal of appeals without unreasonable delay.

Lord Ackner

My Lords, I should like to add a few comments to what has just been said. The delays which have been described are referred to by the Master of the Rolls as, serious in any court. But they are particularly serious in the Court of Appeal, which is the pivot of our legal system. The existing delays, and still more those which are projected, should be an acute source of public concern". The gloomy report to which reference has been made comes as no surprise for this one simple reason. In the centre of page 3 of his report, the Master of the Rolls says, The judicial strength of the Court was increased by two in 1993, and by three during the last year. This last increase, although very welcome, was half the number which I then judged necessary to begin reducing the backlog. There was never any ground for hoping that three additional appointments would do more than slow the rate at which the backlog increased. So it has proved, despite the great contribution made by these additional Lords Justices". Therefore, "too little, too late" is a fair comment on the observations of the Master of the Rolls. In his final conclusions—four of them in all—the Master of the Rolls in the third of them said in terms, If oral hearings are to be significantly shortened, the judges must receive skilled professional assistance, on a one-to-one basis, as is the practice elsewhere". I raised that point on the last occasion of the increase of judges in the Court of Appeal and I ask yet again whether any serious thought is being given to it. What is being overlooked in thinking that the small increase in judicial manpower will assist is the fact that there was sitting last year, as retired Lords Justices, four hard-working, highly competent members of the judiciary—Sir John Megaw, Sir Michael Kerr, Sir Francis Purchas and Sir Tasker Watkins. None of those four can sit this year because—I do not criticise the legislation: I support it—having reached 75, they are no longer able to sit in a judicial capacity. So the position will be increased in difficulty by that.

The other feature that goes towards the backlogs is the increase in litigants in person, the product of cutting down on legal aid. That fouls up the lists and wastes the time of the court in trying to understand what on earth the appeal is about and then explaining it in some detail. All in all this is a very sorry picture and I beg leave to doubt whether the additional three judges will slow up what is occurring at the moment to any real degree. Their appointment will certainly provide no cure.

The Lord Chancellor

My Lords, I am grateful for the support given to the Motion by my noble and learned friend Lord Ackner and by the noble Lord, Lord Irvine of Lairg. In the course of my observations I intimated that a review of appellate procedure will take place in the near future and obviously the question of the extent to which skilled help is required for the Lords Justices will then be taken into account. As the report of the Master of the Rolls indicates, there has been some increase in the support for the judiciary in the Office of Civil Appeals during the time that I have been Lord Chancellor. But the question of whether that should become much more general is an important one which I would expect to be looked at very closely in the review to which I have referred.

It is clear, as the noble Lord, Lord Irvine of Lairg, said, that the method of working which has been developed requires more judicial time out of court than hitherto was the case. I believe that that aspect is well understood and will continue. I also entirely agree with the view that the Lord Justices in the Court of Appeal and the other members of the court—the Master of the Rolls, the President of the Family Division and the Vice-Chancellor when they sit there as in other parts of their jurisdiction—are extremely hard working and the amount of material of high quality turned out by the Court of Appeal during the year is extremely impressive to anyone who is given an opportunity to study it.

I think it right therefore that this order should be passed on the view that a more thorough investigation of the situation and review of the civil appellate procedure should proceed. The review by my noble and learned friend Lord Woolf is primarily of civil justice at first instance and it is therefore natural that to follow that there should be an investigation of precisely what arrangements for the future should arise out of that and in other ways in relation to the Court of Appeal.

On Question, Motion agreed to.