§ 7.30 p.m.
§ Baroness Scotland of Asthal
rose to move, That the draft order laid before the House on 15th October be approved [38th Report from the Joint Committee].
The noble Baroness said: My Lords, this order is made under Section 2(4) of the Supreme Court Act 1981. It raises the statutory ceiling for Lords Justices from 35 to 37. This ceiling was last increased, from 32 to 35, by the Maximum Number of Judges Order 1996. The purpose of raising the ceiling is to provide some flexibility to respond to changing workload patterns and increased pressures.
Due to changes in the type of cases coming to the Court of Appeal since the last increase there is a need for the court to sit 10 or 11 courts to deal with the workload. Over the past few years, it has had to make increasing use of High Court judges sitting in the Court of Appeal and of retired Court of Appeal judges in order to maintain these sittings. Both those practices offer positive benefits in moderation. However, they cannot go too far. The Government consider that it is now necessary to make a small addition to the permanent strength to give the court the flexibility to meet the demands on its time.
The most notable change in the workload of the Court of Appeal following the last increase has been in the complexity of the cases now being dealt with. As a result of the filter, provided by the Civil Procedure Rules' requirement to apply for permission to appeal, and the diversion of less complex appeals to the High Court since the passage of the Access to Justice Act 1999, the appeals dealt with in the Court of Appeal are of increasing legal complexity, requiring judges to spend more time in preparation and in writing judgments. So, while there has been a marked decrease in the number of county court appeals and interlocutory appeals coming to the Court of Appeal, High Court commercial appeals have more than doubled and appeals from the administrative court have gone up by more than 50 per cent. This change in the nature of the court's work is clearly evidenced by the steady increase over the last years in the percentage of appeals where judgment is reserved. Taking 1999 as 553 the base, appeals increased by 44 per cent for 2000, then went up 52 per cent during 2001 and 54 per cent in 2002.
In addition, while the total number of appeals filed shows a slight decrease of approximately 3 per cent in the past three years, the number of appeals settled by consent—cases that will not involve a substantive court hearing—has decreased by more than 20 per cent in the same period. Moreover, the number of applications for permission to appeal shows no sign of diminishing and continues to make serious demands on the time of the court.
My noble and learned friend the Lord Chancellor believes that increasing the capacity of the court by two further judges will provide the flexibility needed to make additional appointments if they are required. I commend the order to the House. I beg to move.
Moved, That the draft order laid before the House on 15th October be approved [38th Report from the Joint Committee]. (Baroness Scotland of Asthal.)
§ Lord Goodhart
My Lords, we have no objection to the increase in the number of Lords Justices. We have serious concerns about the way in which members of the Court of Appeal and other members of the judiciary are appointed. We have been pressing for a considerable time for the creation of a judicial appointments commission that will choose the judges and not just oversee the process of selecting them, as the present body does.
We are also concerned about the slow progress in the increase in the number of judges who are women and members of ethnic minorities. However, we had a chance to air those issues briefly on the Starred Question asked earlier today by the noble Baroness, Lady Howe of Idlicote, so I shall not raise them further.
However, I have one brief point to raise. The Court of Appeal now sits wholly in London to hear appeals from the whole of England and Wales. We are now to have 37 members of the Court of Appeal, together, as I understand the figures, with 12 retired Lords Justices or Law Lords, who are available to sit up to half time. With those numbers available, sitting in 10 or 11 courts, I wonder whether the time is not shortly coming when we should seriously consider whether it would be possible to have one or two places outside London in which the Court of Appeal could sit permanently.
§ Lord Kingsland
My Lords, as your Lordships are aware, Her Majesty's loyal Opposition do not entirely share the views of the noble Lord, Lord Goodhart, on a judicial appointments commission. However, I shall not dwell on that, as our views are already well known.
I have two brief observations about the order. We support the increase in the number of judges from 35 to 37; but in contemplating a further increase, as no doubt the Lord Chancellor's Department will have to do in years to come, will some analysis be made of the relative value of an increase in numbers as against an increase in the productivity of each judge?
554 I refer to the question of productivity in the context of two issues: first, the number and quality of research assistants available to each judge; and secondly, the quality of IT resources available to each judge. Next time the Lord Chancellor's Department is faced with pressures on the workload of the Court of Appeal, before it comes to your Lordships' House with a further request for an increase I hope it will do its sums on those two matters to see whether money is more usefully spent on improving the performance of each Court of Appeal judge, in terms of the volume of work satisfactorily produced, rather than simply adding to the number.
My second point relates to the criminal appeal work of the Court of Appeal. I pay tribute to the remarkable work done by Lord Justice Rose on criminal appeals. He has made an outstanding contribution to the work of the Court of Appeal and the development of criminal jurisprudence.
However—I hope this will not be seen as a criticism of the Court of Appeal's criminal work in general—its jurisprudence has flowed less mellifluously than the civil jurisprudence of the Court of Appeal. The reason is not hard to discern. The membership of the courts hearing criminal appeals tends to turn over rather more swiftly than the membership of courts hearing civil appeals. Hence, particularly on sentencing, we find the cases less easy to interpret in, for example, the Crown Court.
There is no easy solution. I recognise that the volume of work entailed in dealing with criminal appeals is often considerably greater than the volume of work entailed in civil appeals. However, in the allocation of resources between civil and criminal work, I hope that the noble Baroness will bear in mind that there may be a need for some readjustment of resources in the years to come.
§ Baroness Scotland of Asthal
My Lords, of course I shall bear in mind all that has been said by the noble Lords, Lord Goodhart and Lord Kingsland.
I shall answer the noble Lord, Lord Goodhart, first on regional sittings. The Lords Justices of Appeal do not just sit on appeals. They do many other worthwhile undertakings as well. For example, Lord Justice Auld was withdrawn from the work of the court for 18 months over the past two years to prepare his major report on the future of the criminal justice system. Such demands are vital in helping the Government's drive to improve the administration of justice and services in other areas. Additionally, Court of Appeal judges sit at the European Court of Human Rights in Strasbourg and fulfil commitments to the Judicial Studies Board, not to mention the great administrative duties required of the heads of division and other senior members of the court. These are not new requirements, but they obviously are a severe burden.
Your Lordships will be aware that we now have regional sittings of the High Court. We shall take the noble Lord's arguments into account, but I cannot promise him anything in that regard.
555 As for the point made by the noble Lord, Lord Kingsland, on the productivity of judges, there is no question but that the productivity of the Lord Justices of Appeal is very fine indeed.
§ Lord Kingsland
My Lords, that was certainly not my suggestion. I think that the Lord Justices of Appeal do a quite remarkable job in the circumstances in which they have to work, with almost no judicial assistance and a very uneven quality of IT equipment. I am suggesting that, when the cost of future appointments is considered, the Lord Chancellor's Department ought to set an increase in the number of judges against the potential increase in the productivity of each existing judge. I am not for a moment suggesting that the Lord Justices of Appeal are doing anything other than magnificently.
§ Baroness Scotland of Asthal
My Lords, I am most grateful for the noble Lord's clarification. I can 556 certainly reassure him that the need for IT equipment, and the need for training so that their Lordships can take advantage of that equipment, is very much at the forefront of the plans of the Lord Chancellor's Department. We shall continue to do all that we can to support the judges on that issue.
I join the applause from the noble Lord, Lord Kingsland, for Lord Justice Rose and his work on criminal appeals. I note what the noble Lord says about turnover and take all those comments into account. I also reiterate my endorsement of his evaluation of the high quality of the work done by the courts in this regard.
On Question, Motion agreed to.
§ House adjourned at nineteen minutes before eight o'clock.