§ 11.39 a.m.
§ The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin) rose to move, That the draft order laid before the House on 10 June be approved [21st Report from the Joint Committee].448
§ The noble Lord said: My Lords, this order relates solely to the number of High Court judges in Northern Ireland. It is not about their method of appointment, terms of office, or any decisions that they reach when discharging their judicial office. The maximum number of High Court judges in Northern Ireland is prescribed in Section 2 of the Judicature (Northern Ireland) Act 1978. The order will increase the maximum number of High Court judges allowed by statute, from nine to 10.
§ The High Court in Northern Ireland is relatively small. There are nine High Court judges, three Lords Justices of Appeal and one Lord Chief Justice. The judges all undertake a wide range of work beyond their assigned area. All judges undertake criminal work, and, in one day, a judge might hear applications for release from custody, applications or case management issues and a trial at hearing.
§ The demands placed upon the High Court judiciary continue to increase. This is not a short-term increase in judicial workload. There has been a steady increase in business levels. Court of Appeal, Crown Court business and High Court civil business levels are all rising. For example, during 2003, there was a 35 per cent increase in Crown Court cases in the Belfast Division alone. That represented 42 Crown Court cases that required to be tried by a High Court judge, of which 20 were scheduled cases to be tried without a jury. For the rest of the province, an additional 42 cases were received. On average, Crown Court trials will last up to two weeks. However, a significant number lasts much longer. For example, there is a case to be heard in September that is expected to last six months. That will deplete the available judiciary at that level significantly, especially so when overall numbers are small.
§ As well as the increases in Crown Court work, there are increases in the caseload undertaken by the High Court judges in virtually all areas. The Court of Appeal, in which High Court judges also sit in Northern Ireland, has seen a steady and significant increase in business. Some 138 appeals were received in the Court of Appeal in 2001, and that figure rose to 160 appeals in 2003. The number of cases waiting to be heard has increased to 135 cases in 2003.
§ Cases requiring urgent attention also continue to increase. For example, two judges are regularly assigned to judicial review work, which continues to increase. Some 341 such cases were received in 2003. Such cases require immediate judicial attention in many instances, if the remedy is to be effective. There is an increase in Chancery business and in the ordinary day-to-day work of the High Court, including claims for money damages and in contract matters. A second judge has been assigned to the important work of the Family Division. where business also continues to increase. Provisional figures show that in 2003 High Court judges sat 333 days on Children Order work, which was an increase on 253 days in 2002 and 154 days in 2001.
§ Outside their court work, judges are increasingly required to undertake other important responsibilities. For instance, the judges on the Judicial Studies Board have an increasingly demanding role in ensuring the 449 delivery of training. We expect to see further demands on the judges for what might be described as extrajudicial work.
§ The Lord Chief Justice of Northern Ireland is seeking an increase in the number of judges at the right time. While he has been exploring ways of making the disposal of business more efficient—something that we work closely with him on—there is a clear need for this statutory increase in the maximum complement to ensure that we have the flexibility that the Lord Chief Justice needs. That is the opinion of the Lord Chief Justice. The order will allow us to increase the number of judges when business needs absolutely require it.
§ Approval of the order will also enable the High Court in Northern Ireland to continue to meet the need for efficient and timely disposal of court business. There is a recruitment exercise at present to recruit a replacement High Court judge—subject to the House's approval— and some further discussions with the Lord Chief Justice. That scheme might also be used to fill the additional post. I beg to move.
§ Moved, That the draft order laid before the House on 10 June be approved [21st Report from the Joint Committee].—(Lord Filkin.)
§ Lord Shutt of Greetland: My Lords, I thank the Minister for explaining the order. The explanatory memorandum shows that there were six judges; then, there were seven; and then there were nine. Now, there will be 10. That seems to be a quick way of spending over £200,000.
§ The Minister talked about the increasing workload, but there is a fundamental question about whether Northern Ireland is over-judged or under-judged in this sense, either as a ratio to the population or in terms of the number of cases that come before the judges. It was always my understanding that ordinary crime in Northern Ireland was low. Perhaps that is no longer the case. We know that crime associated with the Troubles was high, but I understood that the rates of other crime were quite low.
§ The order says that an increase in complement may be necessary to allow the Lord Chief Justice more time to spend on his administrative duties. Is it the best use of the Lord Chief Justice's time to spend it on administrative matters? Should there be another way of approaching that question? I do not say that the change should not happen, but there is a trend—six, seven, nine, 10—and substantial sums are involved. How does the position fit in with that in the rest of the UK?
§ Lord Kingsland: My Lords, will the Minister confirm that the terms of appointment for the new High Court judge will be identical to those for his or her predecessors?
§ I want to ask the noble Lord about the basis upon which the new appointment will be made. As the Minister is aware, the previous increase in the allotment of High Court judges was from seven to nine. The reason given at the time was that the Human Rights Act 1998 450 would, inevitably, have profound implications for the volume of work done by the High Court Bench. Can the Minister tell us whether that has turned out to be true?
§ I also note that, in 2003, there were 42 Crown Court cases in the Belfast Division, alone, that required to be tried by a High Court judge; and that that amounted to a 35 per cent increase on the figure for the previous year. Can the Minister let us know—to the extent that he is able to do so this morning—why there was such a substantial increase in criminal cases over that year?
§ Lord Filkin: My Lords, the noble Lord, Lord Kingsland, spoke with such quiet courtesy that I had not realised that he had ceased.
§ The first issue was the question asked by the noble Lord, Lord Shutt of Greetland, about whether, as he put it, Northern Ireland was "over-judged". It is not a question to which there is a simple answer, but it is the sort of question that Ministers and good officials ask themselves in such circumstances.
§ I can happily give the number of comparable High Court judges in England and Wales, and I can give an instance of the position in Scotland, although it is more complicated, because there are no exactly comparable positions. The figures show, in large measure, what we would tend to expect them to show, which is that, for England and Wales, the ratio of High Court judges to population is, on the face of it, significantly more economical than in the smaller jurisdictions. We would be amazed if it did not show that. It is hard to infer from those figures alone whether the higher ratios in Northern Ireland or Scotland necessarily mean that they are right or wrong.
§ In England and Wales, with a population of 52 million, there are 106 High Court judges. That gives a ratio of approximately one High Court judge per 500,000 people. It is tricky making a fair comparison with Scotland. In the Inner House, First and Second Division, there are 10 High Court judge equivalents. If we add on those in the Outer House, which deputises for some of the Inner House, there are 22. It is difficult to know how many of the 22 we should count along with the 10 to get a fair comparison. I am not prevaricating; I am just saying that it is not possible to give a simple answer. Looking at Northern Ireland, which is the thrust of the comparator, a population of 1.7 million currently has nine High Court judges, giving a ratio of 1:166,000.
§ I shall be direct with noble Lords. When this order came before Ministers, as is our wont we have an extremely close relationship with the Lord Chief Justice for Northern Ireland, although our roles remain separate. I and my noble and learned friend Lord Falconer of Thoroton have the highest regard and respect for him. The Lord Chief Justice, who took up his post recently, has made it quite clear that he needs an additional High Court judge. In those circumstances, it is not right for a Minister simply to say "no"; we should enter into a process of discussion with him. In a sense he is buttressing why he believes there is a strong case for an additional High Court judge and we shall look at it. If, as I would expect, we were fully persuaded that that was 451 right, we would allow the additional vacancy to be filled, which would be consequent on this order being passed. That is what I expect will happen.
§ But there is a further need, one which I have discussed with officials. In public affairs it is always possible to make a case at the margin for an additional post. Such a case is not difficult to mount and often it can be true that there is merit in it. The fact that it is easy to do does not mean that there is no case. But sometimes one must also look fundamentally at whether there are other ways to introduce more economy into the system by using the rare and scarce resource of our senior judiciary to the greatest possible advantage.
§ Issues like whether lower-level administrative tasks can be devolved so that judges can apply their expertise where it is most valued and important are those on which officials should be working. However, that kind of reflection is not a five-minute job. One would expect the exercise to take 12 months or so. Moreover, no process of this kind should be started on the basis of any form of prejudgment or a bias assuming that something is necessarily wrong. One should always approach such matters with a view to making the maximum use of our skilled judiciary so as to meet the interests of justice and those of the public economy at the same time.
§ I have made these positioning remarks because I thought that noble Lords would be interested to learn that, as well the short-term provision, there is a need to make an additional ceiling provision which we may then decide to fill. There is also a need to look carefully at how to achieve more economy in the system, if it proves possible to do so.
§ I turn to the specific questions asked by the noble Lord, Lord Kingsland. The terms of appointment remain unchanged. As regards the human rights impact, we have tended to find that cases have become more complex rather than that there has been any increase in volume. If I can give him more detail on that point, I will be pleased to do so.
§ I have been even more candid today than perhaps is my wont, but I hope that giving the context for this order has been helpful to noble Lords.
§ On Question, Motion agreed to.