§ Order for Second Reading read.
§ 4.8 p.m.
§ The Attorney-General (Sir Elwyn Jones)
I beg to move, That the Bill be now read a Second time.
This is a Bill to increase the maximum number of judges at various levels in the judiciary of England and Wales, Scotland and Northern Ireland. The Bill asks Parliament to approve changes in the statutory maxima and the reason for doing this is that an all-round increase in judicial strength is now essential.
The Government take the view that it is undesirable to have to legislate every two or three years on this matter and that it would be much better to put up the permitted maxima to a realistic figure now and thus to avoid an early recurrence of the present situation. Even if the recommendations of the Beeching Commission and other bodies reduce the need for so many judges, which in my view is unlikely, there is no fear of a number of them becoming redundant. Within the higher judiciary they now have to retire at the age of 75 and county court judges have to retire at the age of 72. Premature vacancies are not infrequent, and, finally, vacancies do not have to be filled if the state of judicial business does not require it.
The need for more judges in all parts of the United Kingdom arises because of several distinct trends affecting the administration of justice as a whole. In many classes of case there has been an increase of business and in nearly all classes the cases take longer to dispose of. This is due to a variety of reasons, but I think that the primary one is the increase in the complexity, the sophistication and the comparative affluence of our modern society.
There are not only far more criminal cases for trial, but the cases are frequently more difficult and take longer to try and there is an increase in the number of appeals. An illustration of the hardship which flows to the citizens now from the law's delays is that, at present, there are some courts where a 1512 person remanded in custody has to wait in prison three or four months before his trial comes on, and if, at his trial, he is subsequently found not guilty, this is a very serious deprivation of liberty.
In civil litigation, there is more work at many, though not all, levels. The reasons for this include the increasingly wide use of legal aid, a rise in the divorce rate, the fact that more disputes tend to be litigated and the more complicated nature of the issues which do arise for decision.
The traditional remedy for delays in the courts is the appointment of more judges. I appreciate that this has been criticised as a policy of despair by some who point to the need to reform procedures in administration, to rationalise judicial sittings and to take measures of that kind, and I concede that these criticisms have some validity. But I assure the House that the Government are doing all they can to improve the system.
The Royal Commission on Assizes and Quarter Sessions, under the chairmanship of Lord Beeching, is examining the assizes and quarter session system; a committee under Lord Justice Winn is considering the important subject of personal injuries litigation; Mr. Justice Payne's Committee on the Enforcement of Judgment Debts is studying the execution of judgments in civil actions; and, of course, the Law Commission is looking at many other related matters. So there is a concentrated effort to improve the arrangements for the administration of justice.
However, the need for more judges is an urgent one and, in the view of my noble and learned Friend the Lord Chancellor, it would be quite wrong to await the outcome of the deliberations of these commissions and committees before anything is done about it. I think that it would be quite wrong to put up with delays that may result in serious injustices when the appointment of more judges would reduce those delays. In any event, as I have ventured to say, I would be surprised if the proposals of the Beeching Commission results in the need for less judges.
The truth is that we have too few judges in the United Kingdom, certainly in England and Wales and Northern Ireland. The statistics show that, in England and Wales, there are only 382 professional 1513 whole-time judges. This figure includes masters, registrars, district registrars of the High Court and registrars of the county court. There are, therefore, about eight whole-time professional judges per million of the population in England and Wales.
That the figure, for what it may be worth—end it is of some interest—may be compared with 164 per million in Germany, 82 per million in France, 76 per million in Canada, 34 per million in the United States, 29 per million in Australia and 24 per million in New Zealand.
§ Mr. George Willis (Edinburgh, East)
Has my right hon. and learned Friend the figure for Scotland? I have raised this before.
§ The Attorney-General
I have not it readily at hand, but I will have it for a later stage in the debate. I am obliged to my right hon. Friend the Member for Edinburgh, East (Mr. Willis). I shall have something to say in a moment about the Scottish position.
These figures I have given are, of course, and I readily admit it, in part a reflection of the great contribution our unpaid lay magistracy makes to the administration of justice in our country.
In Scotland, there is not the same urgent need for more judges, but there has been an increase in the business of the courts which makes it expedient to take advantage of the opportunity of this Bill to increase the statutory maximum of the judges of the Court of Session from 18 to 20. It should also be remembered that, of these 18 judges, Lord Kilbrandon is Chairman of the Scottish Law Commission, to which he gives his full time and does not sit as a judge, and that Lord Wheatley is Chairman of the Royal Commission on Local Government in Scotland.
There is, therefore, no intention at the present time, my right hon. Friend the Member for Edinburgh, East may like to know, of actually increasing the number of judges sitting in the Court of Session. As I said at the beginning, this Bill merely provides for an increase in the maximum number of judges at various levels of the judiciary and it does not necessarily follow that there will be any increase in the actual numbers at all levels.
1514 But I am bound to say that the growth of judicial work does suggest that additional appointments may be necessary sooner or later and there is advantage in taking authority now to increase the statutory maximum of the Court of Session rather than leaving the matter to a separate Scottish Bill later on.
There is an urgent need now for more judges in Northern Ireland. The present position there has been unchanged since 1920, when the Government of Ireland Act provided that the High Court of Northern Ireland should consist of three judges—the Lord Chief Justice of Northern Ireland and two puisne judges. Despite a steady increase in the volume of work, this number has not been increased.
But the volume of civil work is likely to increase more rapidly as the result of the introduction of legal aid in Northern Ireland two years ago both for civil and criminal cases. Unhappily, as has been the experience of England, there has also been a steady increase in criminal business. Finally, it is no longer practicable for the Lord Chief Justice of Northern Ireland to look for assistance, as he has done frequently since 1962, from retired judges.
I shall now say something of the more detailed reasons for increases in the statutory maxima which apply to specific classes of judge. I start at the highest level—the Lords of Appeal in Ordinary. There are nine of them. They are the permanent judges of the House of Lords and the Judicial Committee of the Privy Council. Their number has not been increased since it was raised from seven to nine in 1947. The Court in the House of Lords is always composed of five Lords of Appeal and the Privy Council is composed of five or three, depending on the nature of the business before the Council.
When five Lords of Appeal are needed in the House of Lords and at the same time a further five in the Privy Council, it is necessary for the Lord Chancellor to seek assistance from non-permanent law Lords such as former Lord Chancellors, retired Lords of Appeal and, for the purposes of the Privy Council of course, judges from Commonwealth countries. This year, judges from Australia, New Zealand and Trinidad 1515 have come to the rescue of the work of the Privy Council.
But the "reserves", if I may call them that without impertinence, for the House of Lords, are in short supply. There is now only one former Lord Chancellor available, namely the noble Lord, Lord Dilhorne, while the Lord Chief Justice of England and the Lord Chief Justice of Northern Ireland, who are, of course, eligible to sit as law lords, are nearly always far too busy in their own courts to be able to lend a hand and the situation is aggravated by the fact that their many other duties have prevented recent Lord Chancellors from sitting judicially as often as their predecessors used to do.
In addition, by reason, if I may say so, of their quality and standing, there is a constant demand for the services of law lords to preside over Royal Commissions and other important matters of State, and the work Lord Donovan is at present doing in presiding over the Royal Commission on Trade Unions and Employers' Associations is a good example. The position is so serious that the work of the Privy Council would, as I have said, have been brought to a standstill had not the Lord Chancellor been able to secure the assistance afforded by some Commonwealth judges.
Plainly, it is undesirable that the highest courts in the land, or in the Commonwealth so far as the Privy Council is concerned, should not have a full complement and be in a position to meet the demands upon them. Accordingly, Clause 1(1,a) increases the maximum number of Lords of Appeal from nine to 11.
The need for more Lords of Appeal is matched by the need for more judges in the Supreme Court. The Court of Appeal, which now has to deal with criminal as well as civil appeals, is keeping abreast of the vast increase in the number of criminal appeals only at the expense of the civil work. At the end of the Easter sittings this year, 91 Queen's Bench appeals were undisposed of, compared with 61 at the same time last year. Up to the end of 1966, the normal time between entry of an appeal and its hearing was about three months. This has recently increased to four months, and, in order to maintain even this rate in the Court of Appeal, it has been necessary 1516 for the Master of the Rolls to borrow judges from the High Court whenever this has been possible.
The House may well think that it is of great importance that the work of the Court of Appeal should not be allowed to fall into arrear. In practice, the court is the final court of appeal for most cases, since only a very small percentage of appeals go on to the House of Lords. The development of the law, therefore, depends to a large extent upon the quality of the judicial work of the Court of Appeal, and it is not at all satisfactory for the lords justices of appeal who man it to work under such pressure that they find it difficult to give adequate consideration to their judgments. Clause 1(1,b,i), therefore, increases the maximum number of Lords Justices from 11 to 13.
There is also increased pressure on the High Court judges, who, quite apart from performing their judicial duties, are in constant demand for committees and other forms of public service. At the moment, no fewer than 21 of the 86 members of the higher judiciary sit on committees or Commissions. A recent illustration was the Aberfan Tribunal presided over by Lord Justice Edmund Davies, which lasted many months and took him away from the work of the Court of Appeal.
In the Queen's Bench Division, the judges of which have to take the civil and criminal work at assizes, and civil work in London, help with criminal work in the Court of Appeal, and sit at the Old Bailey and in the Restrictive Practices Court, the situation is serious. The increase in crime is one of the most important factors. The Queen's Bench judges sit with the Lords Justices in the Criminal Division of the Court of Appeal. The vast increase in the number of criminal appeals, to which I have already referred, involved increases in the number of applications for leave to appeal disposed of from 2,852 in 1965 to 4,403 last year, and to an estimated 5,900 in 1967.
Thus, there has been a doubling in the number of applications for leave to appeal in the course of the last two or three years. The main burden of this increase in numbers has fallen largely on the Queen's Bench judges, exercising the jurisdiction conferred by Section 17 of the Criminal Appeal Act, 1907, on a "single judge". The number of cases 1517 referred to the single judge has increased by 127 per cent. during the last two years.
The demands of criminal business on the time of the Queen's Bench judges who try the more serious criminal cases has also increased. Although the number of persons tried at assizes has fallen slightly, the time taken to try them has increased. The decrease in the numbers of persons tried is due to the extension, in 1962, of the powers of magistrates' courts to try indictable offences summarily. The increase in the length of time is due to the fact that the judges now deal with the longer and more difficult cases. The problem familiar to hon. Members who practise at the Old Bailey may be illustrated by the fact, that the number of cases lasting more than five days at the Old Bailey has increased from 10 in 1952 to 104 in 1966. In short, since 1962 the easier and shorter cases have been dealt with by magistrates and quarter sessions, and the more difficult and longer cases by the judges and Crown Courts.
The increase in the time spent trying criminal cases has been, inevitably at the expense of civil work. This has been at a time when the demands made upon the time of judges by civil actions has also increased, though, admittedly, nothing like as sharply. The result has been that the number of pending civil proceedings awaiting trial has risen substantially. A serious backlog of civil actions can only result in inconvenience and injustice to the parties. In order to help out, it has been necessary to appoint Commissioners of Assize, an expedient which is generally condemned both by lawyers and, very often, by litigants. So far this year Commissioners of Assize have had to be appointed to sit on 14 occasions, as compared with three in 1962, five in 1963 and 10 in 1966.
There has also been a substantial increase in the work of the Divorce Division. In addition, if divorce judges are hereafter to try all short defended cases, of which the county court judges tried 860 in 1966, the result of the Matrimonial Causes Act, 1967, will be to increase further the burden falling on the Divorce Division.
Finally, since 1960, there has been an appreciable increase in the number of proceedings disposed of in court in the Chancery Division. The Chancery judges are now under considerable pressure, and 1518 this is reflected in the fact that in cases in the witness list the interval between setting down and trial is now about 12 months, and the delays in the non-witness list are also increasing, although the recent appointment of a new judge to the Chancery Division will make some improvement.
I am sure that the House will agree that it is quite wrong that persons awaiting trial and litigants should be kept waiting an excessively long time for their cases to be heard. Clause 1(1,b,ii), therefore, makes it possible to appoint additional judges where necessary to deal with the backlog of cases which is building up by increasing the maximum number of puisne judges of the High Court in England and Wales from 63 to 70. At present, it is not possible to make a single further appointment as there are already 63 judges in post.
There is also a need for more county court judges. This stems partly from the increase in the work of the county courts, including the increase in the number of undefended divorces tried by the county court judges as commissioners, and partly from the policy of arranging for the county court judges to help with the disposal of criminal cases. This policy, in my view, is good for the administration of justice. County court judges sit regularly on a rota basis at the two Crown Courts at Manchester and Liverpool as well as at Greater London Sessions. In addition, 36 county court judges give assistance regularly at other quarter sessions. Accordingly Clause 1, (1,b,iii) increases the maximum number of county court judges in England and Wales from 90 to 97.
We come now to Clause 1(1,c) relating to Scotland. I am now able to give my right hon. Friend the Member for Edinburgh, East the figure for which he asked. That is that the number of professional judges per million of the population in Scotland is 15, compared to the figure in England of eight, and compared to 164 in Germany and 82 per million in France. I hope that my right hon. Friend does not think that it is over manned or that the use of the word "racket" about those hardworking professional judges in Scotland is at all justified.
§ Mr. N. R. Wylie (Edinburgh, Pentlands)
Would the right hon. and learned 1519 Gentleman agree that the reason for the figure in Scotland is that we do not rely on lay magistrates to the same extent as in England, but instead the professional sheriff's substitute is the judge in the lower courts with a very wide range of civil and criminal cases?
§ The Attorney-General
I apprehended that this was the case, but I am grateful to the hon. and learned Gentleman for reassuring me that this is so. As I said at the beginning of my observations, we owe a great duty to the "great unpaid" in England, namely, the lay magistracy, for their contribution, and for the remarkable result that in England, Wales and Northern Ireland we are the least judged community—perhaps I should say the least professionally judged. Whether the community regards that as a good thing is not for me to judge.
Clause 1(1,c) increases the maximum number of judges in the Court of Session from 18 to 20, but it is not intended to make any appointments at present. Clause 1(1,d) increases the maximum number of puisne judges in the High Court of Northern Ireland from two to four. As I have said, there is an urgent need for more judges in Northern Ireland. Clause 1(2) will enable further increases to be made in the maximum numbers in any of the classes of judges mentioned in subsection (1) by means of an Order in Council. Clause 1(3) as the House will see ensures that any Order in Council under subsection (2) must be approved by Resolution of both Houses before it is submitted to Her Majesty.
The House will have observed that the Bill does not repeal the statutory provisions which exist providing that no vacancy among the Law Lords, or in the High Court or the Court of Session is to be filled until the Lord Chancellor, or the Secretary of State in the case of Scotland, with the concurrence of the Treasury, is satisfied that the state of business requires that the vacancy shall be filled. Therefore, quite apart from the interest of the Lord Chancellor in seeing that no unnecessary judges are appointed, there is the Treasury watchdog to make assurance doubly sure.
In the case of the Lords Justices of Appeal and county court judges, to whom these provisions do not extend, in prac- 1520 tice the Lord Chancellor has for many years obtained the concurrence of the Treasury before recommending any additional appointments. There is accordingly little or no risk of a plethora of unnecessary judges being appointed, or a kind of judicial Parkinson's Law operating, when both the Lord Chancellor and the Treasury in England, and the Secretary of State for Scotland and the Treasury in respect of Scottish appointments keep, as I am sure is the case, a watchful eye upon these matters.
Accordingly, I commend this necessary Bill to the House.
§ 4.34 p.m.
§ Sir Peter Rawlinson (Epsom)
The Attorney-General will probably have heard of the rather confused judge, Sergeant Arabin, who once said to a man convicted of bigamy:If ever there was a clearer case of bigamy before me this case is that case.I will not go so far as that judge over this Bill, but it is clear to me and most hon. Members, after what the Attorney-General has said that this is a necessary Bill.
This Bill will create an establishment of 94 High Court judges in England and Wales whereas only 25 years ago there were 40 High Court judges and Court of Appeal judges. We will look to the Lord Chancellor, when he comes to make his appointments, not in the popular phrase of the time to devalue the judiciary, but to appoint judges of the very highest experience and standing. It is right that we should take this opportunity to speak of the high standing that our judges have, here and overseas.
Anyone who has been a Law Officer, or has been on any delegation, or travelled overseas on behalf of a professional body knows that whatever people overseas may think of other activities or sections of our nation, the judges are held in the very highest esteem. We have to recollect that the law is made by the House of Commons and the interpretation and administration of it is for the judges. It behoves us, in thinking of the number of judges that should be appointed, and therefore the time of the judges in dealing with cases before them, to produce some kind of legislation which is comprehensible.
When I hear the talk of the House of Commons reformers who want to 1521 change much of the procedure of the House of Commons, I feel that more time and trouble should be taken on legislation rather than in debates on these rather unreal occasions which we have frequently. It is the duty of the House to see that legislation can be interpreted. Some of it, as hon. Gentlemen on both sides of the House will agree, is on the borderlines of incomprehension. While I, as a Tory, want to see as little legislation as possible, I certainly want to see that our legislation is as good and as comprehensible as possible.
I well remember as Solicitor-General moving Schedule 4 of the Finance Act, 1963—a most difficult and abstruse piece of drafting—at four o'clock in the morning. I wondered whether many could really give wise and clear-headed attention to these complicated matters at that time. It not only affects the reputation of Parliament but it also affects the time of the courts, and above all the possibility of public comprehension of the law.
The Attorney-General has given some very useful and interesting facts about the population per judge. My researches, I do not know whether he can corroborate them, show that in the early 1920s there were 33 Lord Justices and High Court judges to a population of 38 million, which gives us about 1 million per judge. In 1966 there were 77 Lord Justices and High Court judges, with a population of 48 million, which gives us 624,000 per judge. That showed an improvement at any rate, but as the Attorney-General has pointed out a greater improvement is undoubtedly needed.
The very favourable Scottish position has already been pointed out and will, I know, give satisfaction to the hon. Member for Hamilton (Mrs. Ewing). I only hope that we will have a Welsh Attorney-General who will help to put matters right and remove this injustice towards England.
The position of the profession with regard to the matter of judges and the appointment of more judges is that we are "waiting for Beeching". We are waiting to see what Lord Beeching's Commission has to say about the administration of justice. Undoubtedly his report will be an important one, and have far-reaching results. I would corroborate 1522 what the Attorney-General has said about the difficult situation on the circuits, and the amount of crime that has to he dealt with at the Assize towns where the single red judge certainly cannot deal with the business and his brother judge has to be switched from civil to crime. I know of cases of triple remanets on circuit. That, of course, is not good enough and does not seem to be as good as it was in the past.
We are often criticised by other English speaking countries for the speed of our judicial process. Many hon. Members will know that in other English speaking countries where there is a similar system of law the criminal process is very much more long drawn out. But I believe and have always believed that it is right that we should insist on the periods between arrest and trial and between conviction and appeal being as short as possible.
I have been told only today—and my hon. and learned Friend the Member for Ruislip, Northwood (Mr. Crowder) will know better than I—that at the Central Criminal Court custody cases—cases of people in custody—are taking some four months to come to trial, bails between four and nine months and Section 1 cases, as they are called, killing by dangerous driving, when a person is on bail, as is always so in these motoring cases, sometimes between nine to eleven months to come to trial. It is an impossible situation when one has to rely on the recollection of witnesses in a motoring accident many months previously, and it is a situation which must be improved.
The right hon. and learned Gentleman spoke of three to four months in the civil list, but there does not seem to me to be a great deal of time, not a reprehensible delay, between judgment and appeal. I can tell him of a case in the past year when the trial was in April, concluded in May and by July the appeal had been heard and the matter was over. I think that the position is very much worse in the provinces than it is in London.
There is no doubt, however, that many solicitors find great difficulty in getting fixtures and fixed dates, which are popular and important, so that they can be sure that the case will come on at a certain time. We have to look at the convenience of witnesses, expert witnesses and the parties. It has always 1523 seemed to me quite absurd that a judge should complain about being underemployed and not having enough work to do if the reason for it is the convenience of the parties and the witnesses, because they are the people who should be put first. Solicitors have a considerable preference for fixtures and the fixed list and I hope that with the increase in judges it will be possible to extend that.
The productivity of judges of course depends a great deal upon the kind of case which they are trying, and recently the long criminal fraud cases have been those burdening the lists everywhere. In 1964 I very much welcomed the fact that my noble Friend, Lord Dilhorne, then Lord Chancellor, and my right hon. Friend Lord Brooke of Cumnor, then Home Secretary, established a joint committee to deal with the law of evidence. I have always felt that this was what affected the length of a trial and that there was much which could be done to improve it. As a consequence, we were able to see the first improvements in the Criminal Justice Act, 1967, when we had some of the fruits of that Committee, and I hope that improvements in the law of evidence will shorten cases and therefore make a saving in judges' time.
I was interested to hear what the right hon. and learned Gentleman had to say about divorce. Are we to expect soon some proposals for a family law division? As I understand it, through the initiative of a private Member, we are to have proposals about divorce. All this may affect the position.
I hope that we shall not evolve a position in which there appears to be a whole-time judicial profession, starting right from the earliest days of a man's career as a lawyer. It would be a mistake. First, we would then get a lower intellectual quality, because the ablest lawyers might well be kept off the bench. Secondly, it would lower the standards of independence, particularly in the early days of such a judicial career when a young man anxious for promotion might be eager to please. One of the safeguards of an independent judiciary is the fact that we have the safeguards against removal. Thirdly, it would create a very inbred profession 1524 of people without much experience of life and practice and isolated from actual problems. However, I distinguish between these and promotions from the county court bench which I personally would welcome and encourage, particularly now that county court judges are having much experience of crime.
A high standard of appointment to the bench is of the greatest importance, and the independence of the bench is something which we should never underestimate. The absence of a written constitution and the powers which are given to Parliament, which, as we all well know, nowadays in practice means the powers given to the House of Commons and therefore to a party political majority, are a situation which calls for great independence of the judiciary, the independence which is given by the difficulty of removal. I therefore want to take this opportunity to emphasise my hope that we will maintain the present position.
Like some other hon. Members who are here today, I ought to disclose an interest in the fact that the more who are appointed to the bench, the fewer rivals we experience in our practice. Perhaps the Attorney-General recollects that Mr. George Johnson refused an appointment to the United States Supreme Court by saying, "I would rather talk to the damned fools than listen to them." I hasten to dissociate myself in the present context from any such irreverent view about judges here.
We have here a Bill which is very necessary and I certainly support the Attorney-General in it and believe that it will assist in the administration of justice.
§ 4.47 p.m.
§ Mr. George Willis (Edinburgh, East)
A few months ago, when the then Criminal Justice Bill was introduced, I looked forward to its being followed by a Scottish Criminal Justice Bill which would deal with the number of Scottish judges as well as other Scottish criminal matters requiring legislation. However, the Government—and I say this so that they may know that we noticed this—introduced measures into the Criminal Justice Bill in such a way as to preclude their being properly discussed in Committee, and they are now introducing these provisions about the number of 1525 Scottish judges. I register my dissatisfaction not so much about this item, as about the procedure as a whole.
The Bill proposes that the number of judges for Scotland may be increased from 18 to 20. It is only four years ago that we raised the permitted number from 16 to 18 and it was not long before that that it was raised. I think that in the last 20 years we have practically doubled the number of judges in Scotland. On the last occasion we had a long and interesting debate in the Scottish Standing Committee on this matter and I ventured to oppose the Clause which made the provision.
In our proceedings in the Scottish Standing Committee on 18th June, 1963, I did an analysis of the number of judges, showing that England and Wales, with 10 times the population of Scotland, had only four times the number of judges. That works out at roughly the figure provided by my right hon. and learned Friend a short time ago. There is a small difference, because I included some judges that he omitted.
Clause 1 provides that the number of Lords of Appeal Ordinary shall be 11, and of these two are Scots. That is not a bad proportion. It was one-fifth, but now it is two out of 11. There are to be 13 ordinary judges of the Court of Appeal in England and Wales, and 70 puisne judges of the High Court, making a total of 83 of these judges in England and Wales. Scotland has 20 judges who perform roughly the functions performed by the 83 in England and Wales.
I suggest that we ought to examine this matter and ask ourselves where we are going. There are now to be 97 county court judges in England and Wales, which are roughly equivalent to the 71 sheriffs and sheriffs substitute in Scotland.
§ Mr. David Weitzman (Stoke Newington and Hackney, North)
Does the hon. Gentleman appreciate that even among the judges in England we have some Scotsmen?
§ Mr. Willis
I am not surprised at that. I have had to leave my native territory of Norfolk because of the large number of Scots who have come there. I am a refugee from occupied territory. We have 71 sheriffs and sheriffs substitute com- 1526 pared to 97 county court judges in England and Wales.
I agree with what was said by the hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie) about lay magistrates doing a great deal of work in England and Wales. I agree that the exact jurisdiction in the various courts is not exactly similar in the two countries, so that a true comparison cannot be made, but it is as near as we can get, and it seems to me that Scotland has rather a surfeit of judges in the various courts. If that is not so, it may be that England has too few, but it certainly raises an important question in connection with Clause 1 (1,c) which proposes to increase the number of judges of the Court of Session in Scotland from 18 to 20.
I was interested when my right hon. and learned Friend said that the Government were not proposing to increase the number of judges in Scotland right away, but only to take power to do so should the need arise. That is exactly what was said by the Under-Secretary on 18th June, 1963, but within three years the extra two had been appointed. We were told the reasons for this. One was that we had to take one judge to preside over the Scottish Law Commission. I accept that a judge was needed for that job. But the second reason is very interesting. We were told that Lord Wheatley had been acting as Chairman of the Royal Commission on Local Government. One member of the bench spoke to me about this and told me that Lord Wheatley had been holding meetings of the Royal Commission on Mondays but that the courts did not sit on Mondays in Scotland. I understand that only during the last month or so has Lord Wheatley extended the meetings of the Royal Commission to Tuesday.
I do not blame my right hon. and learned Friend, because he would not know it, but the Scottish Office should know it. The argument is therefore not a good one. The Royal Commission has been sitting for a long time and Lord Wheatley had not been missing the sittings on the bench as a result of his being Chairman of the Royal Commission.
It is time that something was done to consider the whole procedures of the courts in Scotland, especially the Court 1527 of Sessions. Why should not the Court of Sessions sit on Mondays? I understand that the courts sit on Mondays in England. When I raised this point in 1963 the answer I was given was that the judges had to prepare judgments. I expressed the view that the judges in England surely had to do the same thing. Nevertheless, we have this Monday holiday.
At the other end of the week, in 1940, we used to have five judges in the outer house of the Court of Session sitting on Saturday mornings considering undefended divorce cases. Now, of the eight judges, only half sit on Saturday mornings for this purpose and the undefended divorce cases which used to be considered on Saturday mornings now go into Fridays as well. Some of us feel that divorce cases might be taken out of the Court of Session. It seems to me that some judges there have a three-and-a-half day week.
We ought to consider this fact before we start appointing more judges willy-nilly. If some of these judges are working for only three-and-a-half days a week, it is no wonder that there is concern in other walks of life. Workers are told that they must not ask for a reduction in their hours of work, and we have heard a lot about increasing productivity. Is it not about time that the Court of Session tried to increase its own productivity?
It has a very long holiday in the summer, although last year, very courageously, the Lord President of the Court of Session, after some persuasion, did reduce the holiday by a week. All the procedures of the Court of Session should be examined. I am not an expert but I am told by the experts that a great deal could be done within the Court of Session to put its own house in order to enable the business coming before it to be dealt with much more expeditiously.
§ Mr. Gordon Oakes (Bolton, West)
What my hon. Friend has been telling us about the Scottish situation is most interesting. Can he tell us whether the increase in the number of judges in Scotland, to which he has referred, has reduced the waiting time considerably in civil or criminal cases? Is it a question 1528 of the number of judges or the court procedure which holds up cases?
§ Mr. Willis
I am told that it is probably a bit of both. I am not going to try to be specific about this, because I am not an expert. I had hoped that my right hon. and learned Friend would give us some information about the waiting list in the Court of Session, but we did not get it. I do not blame him, because this is a Scottish matter and we would not necessarily expect him to know about it, but we expect to hear something to justify the increase.
I raised this question on the last occasion it was debated, and voted against the increase. I pointed out that the inner house of the Court of Session did not sit at all during the summer term. I understand that they had one or two rate appeal cases or something similar to consider, but they did not sit. What is the position now? Have they sat during the Summer term since then? We should know. If they did not, this adds a few more weeks to their very long summer holidays. No one is against having holidays, but we should ask whether the Court of Session should not be looked at to see whether these two appointments are justified.
I have been interested in legal matters for many years. Although I am critical of the legal profession, it is not in a personal way, since many of my friends are in the profession and I live and mix with them. I have come to the conclusion that it is time that a Commission considered the legal structure, procedure and practices in Scotland. People talk about the sacred cow of gold, but this is the most sacred cow that I know in Scotland. I expect that the hon. and learned Member for Pentlands will defend his profession, but to an outsider—not only to me but to others—it seems time that this was done so that we can ensure that too many people are not engaged in this work.
I hope that we will have some information about these matters because, despite the appointment of one of the judges as Chairman of the Scottish Law Commission, I am still not satisfied that extra judges are needed. I am confident that, when provision is made for them, every argument will be produced to appoint them. That is almost inevitable, but I 1529 would need a much more satisfactory explanation before I would accept them.
§ 5.3 p.m.
§ Mr. N. R. Wylie (Edinburgh, Pentlands)
It may be appropriate for me to reply to some of the remarks of the right hon. Member for Edinburgh, East (Mr. Willis). It is extraordinary to listen to him now after having listened for so long to him as Minister of State for Scotland. That calm and responsible approach which he showed as a Minister of the Crown seems, I regret to say, to have left him entirely, and he has reverted to the form for which, I am reliably told, he was well known in the so-called 13 wasted years of Conservative rule.
Some of what he said should not be allowed to pass. It is unfortunate that I have to do this, because it should come from the Government Front Bench. That is impossible, because the Lord Advocate is not a Member of the House, which was something about which the right hon. Gentleman complained bitterly during the Conservative Party's period of office—
§ Mr. Willis
The hon. and learned Gentleman was not here and must not get me wrong. I do not think that the Lord Advocate and Solicitor-General for Scotland should be Members of the House. I used to ask where they were only because the hon. and learned Gentleman's party thought that they should be Members, but could never get them in.
§ Mr. Wylie
That is an interesting observation and reflects the attitude of many people in the Labour Party and their antipathy towards the legal profession. Whatever the right hon. Gentleman may feel, it is the Government's duty to have a Law Officer from Scotland in the House not only to explain, along the lines that he wanted, the machinery and implications of Government legislation, but also to answer authoritatively from the Front Bench the kind of allegations which the right hon. Gentleman made.
It is nonsense to say that the inner house of the Court of Session has not been sitting in the summer term. I do not know where the right hon. Gentleman got that information. What he may have in mind is that the second division of the inner house has not been able to sit—
§ Mr. Hector Hughes (Aberdeen, North)
The hon. and learned Gentleman is arguing that the Scottish Law Officers should be Members of this House, but how can they be if the electors will not elect them?
§ Mr. Wylie
That is the difficulty which I can understand is very much in the Government's minds at the moment. I do not suppose that there is now the slightest possibility of getting a Scottish Law Officer into this House.
What the right hon. Member for Edinburgh, East may have had in mind is that the second division of the Court of Session, which is the second division of the Appeal Court in Scotland, has not been able to sit as frequently as it would otherwise have done. The reason is that there is such a volume of work that the judges of the second division are doing outer house work in the Lands Valuation Appeal Court. This change in the volume of business in the Court of Session in recent years should go on record. The Court includes the Lands Valuation Appeal Court, and a great deal of its time is taken up on that work at the moment.
I have obtained some figures—not as many as I would like—which show that the number of cases begun in the Court of Session in 1959 was just over 3,000. It rose steadily year by year to 4,000 in 1963 and it is estimated that it will be 5,500 by the end of this year. In the Court of Criminal Appeal, the same inner house judges deal with both aspects of the work. The number of appeals considered in that court in 1959 was 191, and the estimate for the current year is at least 400. So the criminal appeal work has doubled in these last years.
I do not, unfortunately, have the figures for the number of High Court trials in Scotland at the moment, but I know the impact of the statistics which show a rise of 10 per cent. last year in the number of serious crimes of violence. All the signs are that that momentum is increasing this year. The High Court of Judiciary, particularly in Glasgow, is sitting more frequently and for longer periods than ever before.
The work of Her Majesty's judges in Scotland has never been so extensive. The work being done by the 18 judges sitting there—less the Chairman of the Scottish Law Commission and Lord Wheatley, who has, I imagine, more to do 1531 than attend the meetings of the Commission—indicates that there may well be a need in the near future for additional appointments. I was interested to hear the Attorney-General say that there is no intention to make any more appointments, but I would have thought that, if things go on in the criminal field as they are, one additional appointment at least is likely to be necessary.
The figures given by the right hon. Member for Edinburgh, East about establishments to the court are not correct, I think. My understanding is that the number was raised to 15–16 in 1956 under the Restrictive Trade Practices Act, to 17 in 1963 under the Criminal Justice Act, and up to 18 under the Resale Prices Act of 1964. There has been no extension in the judiciary in Scotland commensurate with the rise in the volume of work with which it has to deal.
If the right hon. Gentleman is concerned about the ratio of professional judges in Scotland to the population, in comparison with the ratio in England, may I remind him that we have always taken the view, rightly or wrongly, that justice is a matter better dealt with by qualified judges. The sheriff in Scotland performs a very important judicial rôle in the country. His jurisdiction is both civil and criminal. In that sense he is not comparable with the county court judge, because in addition to very wide civil jurisdiction, he also has very wide criminal jurisdiction. I should not like to see an extension of lay magistrates in Scotland at the expense of the professional judges who, on the whole, perform the essential requirements of the administration of justice in Scotland. I hope that the Attorney-General will bear in mind that although we have more judges in Scotland, they are not paid nearly as well as judges in England, and that has to be set against the figures which are given.
I welcome the Bill. I recollect that when we were considering the Judges' Remuneration Bill a few years ago, I suggested that there should be provision to increase the establishment in Scotland. That was rejected by the Government. The Attorney-General said there was no need for it. I am glad that the Government have come round to the view that 1532 there is need for it. It certainly is called for, and I welcome the provision in the Bill.
§ 5.12 p.m.
§ Mr. David Weitzman (Stoke Newington and Hackney, North)
A long time ago in my boyhood I spent some years in Scotland, but that does not justify my entering into the argument between two Scotsmen, one on each side of the House. I think that the argument has been fairly well disposed of by what has been said by both of them.
Whatever may be the position in Scotland, the provisions in the Bill are well justified as far as England is concerned. Our judicial system is undoubtedly the best in the world, and our judges compare very favourably with the judges in any other judicial system in any other country. I echo what was said by the right hon. and learned Member for Epsom (Sir P. Rawlinson) about the necessity to see that we have a high standard of judges. That is essential. We must preserve our tradition both in respect of standards and in respect of their independence. Judges must be completely independent of the executive. If we have the type of judge that we have today, and if we can get others of that kind appointed to the bench, then we shall do what is necessary to preserve the excellence of our judicial system.
I appreciate what the Attorney-General said about the backlog of civil cases, and I agree that it is essential to do everything possible to make the trial of these cases as expeditious as possible. But I have had a number of complaints from constituents about the delay that takes place in the hearing of criminal appeals. A comment was made about the delay in the hearing of a case in the Central Criminal Court, but there are many cases in which persons convicted of crimes have entered appeals but then have had to wait for many months to have their appeals heard. In many cases, it is said, there is a difficulty in obtaining the transcript, and we know that there is, in fact, such a difficulty. But energetic efforts ought to be made to deal with this type of case, in particular.
After all, although the suit is important to the individual in a civil case, he is at liberty, he is at home and he can pursue the matter and take advice. But many people convicted of crime have to 1533 languish in prison awaiting appeal to the criminal division of the Court of Appeal. It is essential that those cases should be heard at the earliest possible moment. Clearly the appointment of additional judges will be a step in the right direction, but I hope that we shall not stop there arid that other steps will be taken to see that these trials are held as expeditiously as possible.
The right hon. and learned Member for Epsom made an important point about the necessity to see that our legislation is expressed in language which can be understood and is as simple as possible. I hope, Mr. Deputy Speaker, that you recognise that this comment is not out of order, because it affects decisions by the courts. Right hon. and hon. Members will recall a case heard only last week in the Court of Appeal with respect to one of the regulations under the Industrial Injuries Act. A decision had been reached by the Industrial Injuries Compensation Board, but there had been an appeal to the divisional court, which had come to a certain decision, and the Court of Appeal had reversed the decision arrived at by the three judges in the divisional court.
In that appeal the Master of the Rolls and other judges expressed the view that they were dealing with a language which it was difficult for them to translate into effect. They commented on how much more difficult it was for any layman who was affected to understand what the regulations meant. That is not the only instance. There are cases under the Betting, Gaming and Lotteries Act, and particularly cases about Income Tax in which the language is couched in the most incomprehensible terms. This is not an idle point, and it has been raised before, but surely one the Government's primary considerations ought to be to see that wherever possible draftsmen are charged with the task of making the language as simple as it possibly can be, so that it can be understood by the person who has to obey the law. We have the canon that everybody is supposed to know the law. How can everyone possibly understand the law when it is couched in language that cannot be understood?
I note that there will be an increase in the number of county court judges, 1534 which is certainly necessary. But may I remind the Attorney-General that when the legislation was before the House which transferred undefended divorce cases to the county courts, to be tried by county court judges, and when we were told of the saving in expenditure which would be made, I had the temerity to point out that we had forgotten the additional county court judges who would have to be appointed and that that expense ought to be taken into account. I am very tempted to say, "I told you so", but my criticism is very mild. This is a very necessary Measure and I agree that it should be commended to the House.
§ 5.19 p.m.
§ Mr. Percy Grieve (Solihull)
I should like to add my voice to the almost universal welcome which has been given by the House to this useful Measure. I hope that I shall not be misunderstood if I also describe it as a modest Measure—modest, that is, in the maximum increase which it permits in the numbers of the judiciary both in England and in Scotland. It is modest in that respect because, as the Attorney-General said, we in this country—certainly in England—fulfil justice on the bench with a remarkably small number of judges. Foreign lawyers are amazed that the great work of the courts in this country—work that has the admiration of most of our colleagues abroad—is conducted by such a small number of judges. That number has not been adequate in recent years, despite the immensely hard work which the judges have been doing.
The content of the remarks of the right hon. Member for Edinburgh, East (Mr. Willis) was succinctly dealt with by my hon. and learned Friend the Member for Edinburgh, Pentlands (Mr. Wylie), who knows much more about this matter than I could pretend to know. When the right hon. Member for Edinburgh, East criticised the amount of time spent by judges in actually sitting, I do not think that he realised the fact that the amount of time spent by them on the bench represents only a fraction of the time spent by them doing judicial work.
The conscientious judge, after a long day in court—at assize, the Old Bailey or on the county court bench—will spend many of his week-day evenings, if not all of them, reading his notes of the transactions in which he has been engaged and 1535 looking through depositions and pleadings for the next day's work. And, of course, a substantial amount of his time is devoted to this task when he has reserved his judgment. The public do not altogether appreciate how much time is spent by judges outside their apparent working hours and how much time they spend on the business of society. I suggest that they spend as much time on these activities as the time spent by those who practice before them in getting up their cases.
As a practitioner, I urge hon. Members to realise the real hardship which is caused at present, particularly on circuit, because the lists are greatly overcrowded and because judges are frequently unable to get through them. Consider, first, criminal work. For a number of years it has frequently happened in many of our great circuit towns that the weight of criminal work is such that the judges, both those who attend to the civil business and the red judges, must do the criminal work, which means that a week or fortnight at an assize court may be spent dealing with criminal work alone while the civil work is left untouched. This grave administrative inconvenience means that the civil work must go over to the next assize or a commissioner must be sent down especially to attend to the civil business. It is not only the administrative inconvenience which is so grave. Anxiety is also caused to the litigants.
Only those who practise in the law, whether as solicitors or counsel, and who see litigants can appreciate how much their whole lives can be involved in cases until they are tried. It may be the case of a widow whose husband has been killed in a road or factory accident and who is looking for damages. It may be a man with a dispute with his neighbour about boundaries or a nuisance. His whole life becomes involved in this and there is no possibility of any friendly relationship subsisting until this litigation has been disposed of. It may be a small businessman who is suing for a disputed debt or a great company suing for many thousands of £s, perhaps against somebody whose whole future is bound up with the question "aye" or "no", must he pay this money?
When we consider assize work, people notice that their cases are listed at forth- 1536 coming assizes and say, "At last"—perhaps after years of preparation, anxiety and negotiation—"my case will be tried. At the end of the next assize I am going to know where I stand". Then, because of the sheer weight of criminal work—which has been overwhelming assize courts for the last 10 years or so—at the end of the assize not only has that individual's case not been reached, but perhaps none of the civil work has been dealt with.
This state of affairs is a scandal in the administration of justice, a scandal for which the only explanation is the great increase in the amount of work that must be done and the shortage of judges able to deal with it. When discussing a matter of this kind it is important to see it in the human terms which are involved. If we look at it in those terms I have no doubt that Parliament will see how necessary is this modest Measure.
I will not go over the ground covered by my right hon. and learned Friend the Member for Epsom (Sir P. Rawlinson) and the Attorney-General on the question of criminal appeals the number of which, partly as a result—I do not say this to be critical but because it is a fact—of the fact that the power of the former Court of Criminal Appeal to increase sentences is no longer a power which can be wielded by the Criminal Division of the Court of Appeal has so vastly increased. The Attorney-General said that an estimated 5,900 appeals would have to be dealt with by the end of the year. It is clear that more judges are needed to do this work. The appalling increase in crime is eating into the judicial time available and into the deployment of the judicial manpower at our disposal.
We must also remember the great anxiety that exists in the minds of people who are waiting to go for trial at first instance in the criminal courts, in addition to that of those who may be advised to appeal and who are waiting while their appeals are delayed, perhaps in prison pending the result. For all these reasons, I associate myself, with feeling, with the observations of my right hon. and learned Friend the Member for Epsom, I support the remarks of the Attorney-General and I support the Bill.
§ 5.29 p.m.
§ Mr. Malcolm MacPherson (Stirling and Falkirk Burghs)
I found little with 1537 which to disagree in the remarks of the hon. and learned Member for Solihull (Mr. Grieve). There seems to be a consensus that the main purpose of the Bill is sound, and I certainly support that view. If an increase has taken place in the amount of work to be transacted by the courts, the sensible thing is to increase the number of professional judges; and I do not see why we should fear doing that.
I was struck by the figures given by my right hon. and learned Friend the Attorney-General about the numbers of professional judges per 1 million of the population in various countries. I confess that I had not realised that the figure for this country was so much lower than that of some countries for which one has considerable respect. These figures put the whole question of judicial manpower in somewhat of a new light for me.
Like my right hon. Friend the Member for Edinburgh, East (Mr. Willis) I am interested in the question of Scottish judicial manpower and, in the main, I take the same view as my right hon. Friend I do not believe that the proportion of judges, particularly High Court judges, in England and Wales compared with Scotland has been properly explained.
The hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie) made a couple of points with which I would not disagree but which leave the essential point in this connection untouched. He said that the amount of work in the Scottish courts is increasing. One does not disagree with that. He also said that a lot of the work which in England and Wales could be done by lay magistrates and judges is done in Scotland by professional judges. One does not disagree with that. At the same time, not very much of the work of the Court of Session or of the High Court is done in either country by lay magistrates or judges.
The hon. and learned Member left untouched the point that in Scotland, with a population of one-tenth, using broad figures, that of England and Wales, there are about one-fifth as many judges. There may be a perfectly rational explanation for this position—I am not a suspicious-minded character in matters of this sort. I do not know the exact 1538 jurisdiction of the various levels of the courts in England and Wales. I have a rough notion, as we all have, but I am not professionally knowledgeable on the subject, but one wants to know why there is this considerable discrepancy. We should be told before starting to provide for the appointment of additional High Court judges.
Before my right hon. Friend spoke I had thought of giving some comparative figures for England and Wales and for Scotland. I do not need to do that now, but in attempting, in a rough and ready layman's way, to get the information, I found the publications extremely confusing. The criminal stastistics for Scotland and for England and Wales seem to have only one thing in common in their arrangement—the title. Everything else seems to be arranged so as to be just about as unhelpful as possible for the ordinary lay inquirer. I will give just one instance before passing on to the main provisions of the Bill. In pages 18 and 19 of the English volume, the number of people brought to trial is shown as so many per million of the population. When I looked for the corresponding figure in the Scottish publication, I found the proportion as it relates to the cities in Scotland, to the towns in Scotland and to the countryside in Scotland, but no proportion as it relates to Scotland as a whole. Surely, in such simple matters the two Departments could get together to make it easier for the inquiring layman to get the information he seeks.
As I say, we need some explanation of the proportion of Scottish judges and English judges to the populations of the two countries, but another proportion I should like to draw to the attention of the House is the proportion of Scottish judges to members of the Scottish Bar. The number of practising members of the Scottish Bar is usually about 100 or 120, compared with a couple of thousand or so in England and Wales. We have a provision here to appoint up to 20 High Court judges, in addition to the 61 sheriff substitutes and others.
It is not healthy to have such a proportion of people holding public appointments, well paid even at the sheriff level—in spite of what the hon. and learned Member for Pentlands said—and very well paid at the High Court level, coming 1539 from such a small Bar. Instead of increasing the possible number of appointees to the High Court Bench, I should like to make conditions. I am not a dictator, so I cannot do it; I can only put my point in debate. I should like some method that would ensure that if we increase the number of people at the Scottish Bar who get jobs of this importance and quality, we should also provide for a widening of the membership of the Scottish Bar. At present, it comprises too small a group to support in a healthy way this sort of superstructure.
The hon. and learned Gentleman commented on the Lord Advocate not being a Member of this House, and I rather gathered that his attitude was one of sorrow that the Lord Advocate is not a Member. As there are 5 million people in Scotland and 100 or 120 members of the Scottish Bar, it seems to me incomprehensible that anyone could argue that Scottish constituencies should, somehow, find a way of picking out one of that hundred or so for each Government in each Parliament. The old argument used to be that there should be a Lord Advocate and a Solicitor-General for Scotland in Parliament—and, presumably, two counterparts on the Opposition side. That is the height of nonsense. If a member of the Scottish Bar is selected, stands, and wins a seat, good luck to him; but the Scottish Bar should not be able to make any kind of claim, even of the most hypothetical sort, always to have a Member of the House from this tiny group. In this respect, the whole position in Scotland is quite different from that in England.
Not only is the Scottish Bar very small but it excludes people from membership on grounds of finance, and does so bluntly, opently and blatantly. One cannot find that in a similar profession anywhere else. I believe that the entrance payments to the English Bar are in themselves too high, but they are nothing compared with the entrance payments required of someone wishing to become a member of the Scottish Bar. I believe that £450 or more has to be paid, more or less on the nail, before a person can be called to the Scottish Bar. I regard that as completely hostile to the spirit of our society in these days. It excludes the very kind 1540 of people one would like to see at the Bar.
§ Mr. Wylie
I am grateful to the hon. Member for giving way. He is now making allegations about the Scottish Bar which are quite unfounded. Is it not perfectly clear that the substantial part of the money contribution for membership of the Bar is related to the widows' fund? One of the facts of practising at the Bar is that one cannot rely on any pension or superannuation. If one is sick or ill, one cannot earn anything, and if one leaves a widow she would be otherwise unprovided for. The greater part of the financial commitment in going to the Bar is that, if one leaves a widow, she has something to live on.
§ Mr. MacPherson
The hon. and learned Member makes my point for me. Here is a profession, all of whose members are in the ordinary National Insurance Scheme. Every one is protected in the same way as everyone else in the country. Yet the Scottish Bar says that unless a man joins its widows' pensions scheme he cannot enter the race for a judgeship.
§ Sir Douglas Glover (Ormskirk)
I hate to intervene in what is a lawyers' argument, but I must point out that all Members of Parliament get a pension as a result of a contribution that has nothing to do with the National Insurance Fund.
§ Mr. MacPherson
That is not quite the point. In fact, it is not the point at all. What I am saying is that members of the Scottish bench are appointed only from the Scottish Bar, just as, in England and Wales, judges are appointed from the English and Welsh Bar, but that, in order to enter oneself in the competition in Scotland, which may ultimately end in one's becoming a judge, one must buy one's way into the widows' pension scheme.
That seems to me utterly indefensible. Here we have a private society saying, "Unless you join our widows' pension scheme you are out of the running for a High Court judgeship". Successive Governments have accepted this, as do the present Government, but that attitude should cease. There should be a change. The financial qualifications should be removed. There are countries with perfectly respectable legal systems in which the qualification to plead in the courts is 1541 the possession of a law degree or a similar qualification; but we add to that a completely unjustifiable financial qualification which, in the case of Scotland, is very much worse than in England and Wales.
Again, we still have not got rid of the system of political appointments to the Scottish bench. It is an unpleasant thing and it is not liked by the Scottish public. Governments from both sides do it and it is time it was stopped. I remember that long ago now, when Lord Shawcross was Attorney-General, he told the House that, in England and Wales, there was now no possible suggestion of political influence in appointment to the bench. We in Scotland are still far from that situation, but it is high time we reached it.
§ 5.42 p.m.
§ Mr. Antony Buck (Colchester)
I hope the hon. Member for Stirling and Falkirk Burghs (Mr. Malcolm MacPherson) will forgive me if I do not follow him across the Border. On reflection, I might add that he perhaps would not forgive me if I did. One notices that Scottish Members are increasingly touchy about English Members involving themselves in purely Scottish affairs, although the converse does not appear to be true to any great extent.
The first aspect of the Bill I wish to comment on is the provision to increase the number of Lords of Appeal in Ordinary to 11 from the present 9. The Attorney-General said that, at the moment, Commonwealth judges had to come to the rescue of the Privy Council Judicial Committee as at present comprised. I hope that, when the number of Lords of Appeal in Ordinary is increased, we shall not, however, depart from the desirable practice of having members of Commonwealth senior benches sitting in the Privy Council here.
I have not very much experience of the Privy Council but on the two occasions I have appeared there I have been impressed by the calibre of the judges from the Commonwealth and on one occasion, when I was led by an Australian silk, I was immensely impressed by the standard of competence with which the case was presented to their lordships. I hope that we shall see an extension rather than a cutting back in the number 1542 of Commonwealth judges who sit in the Privy Council, in spite of the fact that we shall not have the sheer necessity of their presence in future.
Secondly, the number of puisne judges of the High Court is to go up to 70. Most of the points arising from this have already been covered. The absolute necessity, in England at any rate, for a substantial increase in the number of judges to cope with the sheer volume of work arising from the crime wave and the great weight of litigation has been proved beyond peradventure. Right hon. and hon. Members have pointed out the delays involved both in bringing people to trial and in the hearing of appeals.
It is an administrative point but nevertheless very important that, because of the volume of the work judges have to contend with, there is a terrible tendency for clerks and others who arrange lists grossly to overload a list for a day or for any set period. I profoundly hope that the fact that, in due course, we shall have a greater number of judges will prevent this pernicious practice from continuing.
Earlier this year, I was in a case with a police force in an area in which I do not ordinarily practice. The police were constantly commenting on the hours they were having to waste in going to court and seeing their case adjourned—in one case, four times. They were not so much concerned about the waste of their time as about the impact of such a situation on the co-operation of the public in the enforcement of law and order.
I have encountered in my constituency and elsewhere people who have said, "I came forward as a witness in order to help the enforcement of law and order. I go to the magistrates' court and am kept waiting for a day and then have to go back again next day. Then the case goes to quarter sessions and I hang about for another day". Indeed, the case might go on to the next sessions, and sometimes a witness will have cause to go to court as many as four times and will still not be heard. This is intolerable and is having bad effects on the relationship of the public with the administration of justice.
I hope that strenuous measures will be taken to call the attention of those responsible for arranging lists to the 1543 desirability that overloading should stop. It is a fear among those who arrange lists, presumably, that a judge may suddenly find himself without work for an afternoon. There can surely be very few instances indeed where a judge could have an afternoon off. The fact is that far too many cases are put into the lists. Cases are put in which, it is quite clear, have not the remotest chance of being reached in a day. There is even very often a refusal to mark a case with the statement that it will not be heard before a certain time in the day. With the increase in the number of judges, this situation should be able to be dealt with and I hope that it will be.
Overall, the Bill is clearly needed and I wish it well. I hope that we shall see that we do not have to have another Bill on this subject for a long time because one naturally hopes that the promising trends at the moment in some parts of the British Isles will go on and that we shall not have continuation of the crime wave which is so much responsible for the Bill.
§ 5.48 p.m.
§ The Under-Secretary of State for Scotland (Mr. Norman Buchan)
Perhaps I may now make a short intervention, since the hon. Member for Colchester (Mr. Buck) seems to have moved away from the Scottish aspects of the Bill. There has been a good deal of discussion about the Scottish points which hardly come within the short title of the Bill and I do not intend to pursue those. We have to be clear that this is, first of all, a precautionary measure. We are asking that we should have the right to appoint another two judges to the Court of Session. It is a useful precaution to take.
We have been asked why this should be provided for in a United Kingdom Bill—or English and Welsh Bill, if hon. Members prefer that. We are getting the best of both worlds because this process means that the increase will not later require the necessity of employing a Scottish Standing Committee or any other Scottish legislative process. Using an English Bill for a Scottish matter which is not so much of legislative importance but of administrative convenience is a useful thing to be able to do.
§ Mr. Willis
I do not blame my hon. Friend, but he was not present when I dealt with this subject. I am not criticising the appearance of the provision in the Bill, but the fact that the Scottish criminal provisions were split between this and the last Bill in a way which did not allow us to give proper and full consideration to them.
§ Mr. Buchan
I hope that my right hon. Friend will agree that it is a matter of convenience that we should use the method now. Perhaps he will permit me to apologise for not being present when he spoke earlier. He will probably understand the reason; I came here as quickly as I could.
The need to take this precaution at this time has been questioned, but the hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie) partly dealt with that aspect. The number of cases is increasing. For instance, at the Court of Session in 1964 there were 3,900 cases, whereas by the beginning of 1967 there were already 3,828 pending. The number of cases at the Court of Session has risen from 3,930 in 1964 to an estimated 5,830 this year, a considerable increase. This reflects itself in the amount of time which is taken. When we increased the maximum number of judges in 1963–64, we managed to close the time gap between the closing of proof and the trial to about four months, but, because of the increasing number of cases, the time is again lengthening.
§ Mr. Hector Hughes
Does not my hon. Friend think that there should be more Scottish judges in the Judicial Committee and that the Bill, should provide for more Lords of Appeal in Ordinary? At present there are 11 of whom only two are Scottish, and yet Scottish law is quite different from English law. Surely there should be more Scottish judges among the Lords of Appeal in Ordinary to deal with Scottish law.
§ Mr. Buchan
Much of what my hon. and learned Friend has said does not come within the province of the Bill, although there may be one or two points to be made later. Certainly those who are now being used are doing a very useful job.
Between 1960 and 1963 the number of cases at the Court of Session rose by 1545 about 24 per cent. and there was a further rise of 25 per cent. between 1963 and 1966, a very considerable rise, including the number of contested cases which has risen by about a fifth between 1963 and 1966. I am not altogether sure that we should necessarily regard it as a bad thing that there is an increased ratio in the number of qualified judges in Scotland. It might be a mark of superior civilisation that we use professionally trained judges in our legal system and perhaps this is something in which we should take pleasure, even though, as my right hon. and learned Friend the Attorney-General has just reminded me, the last time we debated together was when I was sitting below the Gangway and he was advocating an increase in the salaries of judges at the time of the seamen's strike. However, with the increasing delay between proof and trial, there is a case for these provisions today.
§ Mr. Buchan
The argument may be that Monday is an extremely convenient time for solicitors and so on to meet their clients and to arrange the week's business. It may be convenient to have a weekday which is not a court day for this kind of procedure to be used. I should point out that they do meet on Saturday mornings.
My hon. Friend the Member for Stirling and Falkirk Burghs (Mr. Malcolm MacPherson) will recognise that I cannot pursue all the points he made, but I have made notes of them. I was interested to hear him say that the number in the Bar might be too small to maintain the superstructure of the sheriffs in a proper way. He will understand if I do not answer that in detail.
As the hon. and learned Member for Solihull (Mr. Grieve) has said, this is a modest proposal. It is introduced not because we intend immediately to increase the number of judges by two, but because we have seen the pressure on the courts increasing and believe it to be convenient at this moment, as a Bill is necessary for England and Wales, to use this opportunity to make provision for Scotland.
§ Mr. Buchan
I have given way to my hon. and learned Friend on more than one occasion, if not this afternoon. We 1546 believe it to be a useful convenience to take this step at this time to have the power to increase the number of judges by only two in case their appointment should be necessary.
§ Mr. Hector Hughes
Before my hon. Friend sits down, may I put to him this important omission? There is nothing in the Bill to enable the number of sheriffs to be increased. As he knows, sheriffs in Scotland are minor judges, without using the expression in any derogatory sense, and many of them are overworked. Should not their number be greatly increased?
§ Mr. Buchan
Perhaps the number of sheriffs should be increased, but that is not part of the Bill and it is not necessary to make it so, because the number can be increased as we wish without these provisions.
§ 5.56 p.m.
§ Sir Douglas Glover (Ormskirk)
I welcome the Bill, although my welcome is only lukewarm. There have been several such Bills since I have been in the House and we seem to have increased the number of judges at the same rate as the increase in crime and litigation, so that over the years the injustice of waiting lists and delays appears to stay as grave. There does not seem to be any speeding of the administration of justice.
The hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) said that our system of justice was the finest in the world. It is because of the quality of those who administer it, but to be justice, justice must be not only neutral and unbiased, but swift, and there is great injustice all over the United Kingdom because of the delay which still occurs.
As a layman I am often horrified when I pick up my newspaper and read that some poor woman who has lost her husband in a motoring accident in 1962 has just had her case settled five years later, having to wait for five years when she has not known whether she would get any damages. How she has lived in the intervening period heaven only knows. Such a case should be cleared through the courts much more quickly than now appears to happen.
1547 I was much impressed by what my hon. Friend the Member for Colchester (Mr. Buck) said about witnesses. As a layman I find that an enormous number of people do their utmost not to get involved in criminal or even civil cases, knowing that they may be involved in the loss of an enormous amount of time. They are called to court and then sent away and brought back again. All this reduces the quality of the administration of justice. If the public becomes actually hostile to the working of the machinery, some cases will inevitably go the wrong way because the witness who might have given evidence which would have altered the result will smartly get out of the way. There is no doubt that many people get out of the way if they see a motoring accident, because they know how much time it will cost them if they get involved.
Their friends, who have been involved as witnesses, tell them that they have had to go to a court of summary jurisdiction and then they found that they were expected to be called on a Tuesday, but they were not called until the Wednesday. Then there was a delay and they were called again, and they lost a great deal of time, temper and money. Therefore, they do not want to get themselves involved if they can avoid it.
Will this increase cut down the delay so that criminals on appeal will have their appeals heard almost by return? If a person is found not guilty on appeal it is not much consolation if he has been in prison for perhaps six weeks beforehand. Nothing can repay him for that. If it is a civil case, then I understand that all too frequently, particularly at assizes, it may be put off. It may be pending and then pushed back again several times. People in that position are, I am sure, not prepared to accede to the view of the lawyers in this House that our form of civil and criminal justice is the finest in the world.
They say that they have been messed about, have had to wait an unduly long time before their case was settled, that they have been left in anguish, doubt and worry for an excessive period of time. This is an entirely non-party matter and I hope that the Government will look at it because we cannot have justice without speed.
§ 6.2 p.m.
§ Mr. Edward Lyons (Bradford, East)
While I support this Bill, it does not create sufficient new judges for the purpose mentioned by the hon. Member for Colchester (Mr. Buck). These new judges are to meet existing demands, yet in England we have said for years that there should be a change in our priorities, a change in favour of the witness, the juryman, the police officer, so that they do not have to wait, even if the judges do.
At the moment, such is the pressure on the judiciary that some of them give the impression that speed is a distinct factor in the performing of justice. If one could get enough judges, so that getting through a load of work was not so urgent and burdensome, then judges would become more patient and justice would more often be seen to be done. The trouble with a proposition of that kind, that one should create far more than seven new High Court judges in England and Wales, is that more and more we are squeezing courts into buildings which can no longer take them.
It is the case of the quart and pint pot. It is easier to create new judges than to create new courts in which they can operate. I hope that the Government are giving serious consideration to ensuring that in places like Leeds and Bradford, for example, these new judges will have decent accommodation and that jurymen and witnesses will be given proper facilities while they are waiting. I trust that the Government are moving towards a day when there will be days fixed for cases, and if a case settles on the doorstep of the court it will not be regarded as too bad that the judge has nothing to do that day, providing that many other people are not prevented from doing their work.
When the time comes to appoint these new High Court judges, I hope that consideration will be given to appointing further women judges. At present there is only one High Court judge to whom members of the Bar say "My lady"—Mrs. Justice Lane. She was an inspired appointment. She has won golden opinions everywhere and she combines courtesy with erudition and charm. If there are other women lawyers in this country of that stamp it should not be long before they are given preference. Mrs. Justice Lane's appointment must 1549 have been a very great encouragement to the champions of women's rights.
I hope, too, that an increase in the number of judges will result in some consideration being given to the despatch of High Court judges to the provinces during the vacation in order to deal with urgent matters. At the moment High Court work stops for a very long time in the summer. It should not always be necessary to go to the vacation judge in London on urgent matters. When court buildings are not so intensively used, it ought to be possible to send judges out to the provinces to hear business which cannot easily wait.
I would have liked to have seen some provision in the Bill about stipendiary magistrates. The situation at present is anomalous because an authority such as Hull decides that it cannot do without a stipendiary magistrate, while an authority like Bradford decides that it can. The machinery of justice should be uniform throughout the country. If it is necessary to have a stipendiary magistrate in Hull, to have the benefit of a trained legal mind to assist the lay magistracy and to deal with complex matters, it must also be appropriate and necessary in Bradford.
On the other hand, if it is not so necessary then they are wasting their money in Hull. I would like to see provision in some Measure, possibly this Bill, for all towns with a population of. say, more than 200,000 to be obliged to appoint a stipendiary magistrate who would have the effect of lifting the level of the local lay justices by being available to them for advice and who would be more at ease in the despatch and dispensation of justice in the more complex cases.
Everyone has agreed about the high standard of the British judiciary, and I heartily agree with all that has been said. It is true that most British judges are taken from the ranks of the recorders. The office of recordership is one in which most British judges obtain experience in the work of the Bench. One does not know what the Beeching Committee will report, but it would be a sad day for England, and the English judiciary if the office of recorder was to be abolished as a result of any of the Committee's recommendations, so that in future people 1550 would be appointed direct from practice at the Bar to the High Court.
This would mean that there was no interim period of practice and training when those who are good on the Bench, who have shown that they can manage well and have the right cast of mind and disposition are chosen, while others have shown themselves to be not suitable. I trust that it will not be long before the Government feel that there is enough accommodation, enough money and enough talent to appoint the other judges so that justice can be speedier and better.
§ 6.10 p.m.
§ Mr. Gordon Oakes (Bolton, West)
I am not sure, as my hon. Friend the Member for Bradford, East (Mr. Edward Lyons) appears to be, that an increase in the number of judges will speed up the administration of justice. The hon. Member for Ormskirk (Sir D. Glover) dealt with this point. He said that, although we had increased the number of judges in the past, the increase only kept pace with the increase in litigation and crime, so that there was more work and more judges. The hon. Gentleman said that he gave the Bill a mixed reception. So do I.
The Title of the Bill, the Administration of Justice Bill, gives one the impression that it is an important and grandiose Measure which will modernise the machinery in our courts. It will do no such thing. The Title of the Bill should be something like "The Provision of Additional Judges Bill", because that is all that it is.
Are we right in tackling the matter in this way? What would we say of industrialists—the people to whom we are preaching and saying that they must modernise and streamline their machinery—if they adopted the method which we have adopted in this Bill? In effect, what we are saying in the Bill is that there is a backlog of work and that the work is increasing in complexity and amount. Two years ago, we increased the remuneration of judges. This year, we are increasing the number of judges. If an industrialist, faced with a backlog of work, were to employ these methods and merely increased prices and tried to get more staff without looking at the methods of his establishment, we should criticise him very severely.
1551 Many of the things which my colleagues from Scotland said earlier are very apposite to this argument. Is the machinery of our courts satisfactory? Is that what is causing a lot of the delay and backlog of work—not only the number of judges but the inadequacy of the archaic machinery? An additional 22 judges are to be appointed. From where will they be recruited? I will not deal with the Scottish position because it was dealt with by my hon. Friend the Member for Stirling and Falkirk Burghs (Mr. Malcolm MacPherson). But the position in England and Wales basically is no different from the position in Scotland. The judges will be recruited, not from a Bar which consists of 2,239 practising barristers, but from a very much narrower field. A judge needs to be learned in the law, but it is equally if not more important that he should be learned in life. I am aware that the Bench and our judicial system could be considerably improved if we broadened the base of recruitment.
Apart from the 2,239 practising barristers, there are 21,672 practising solicitors of which, I should inform the House, I am one. I have not the slightest wish to be considered for a judicial appointment, but among their number there are many who would make most eminent county court and High Court judges. I see no reason why they should not make suitable and eminent judges of the Court of Appeal, since they are learned in life—perhaps more learned than those in the narrow and restricted field from which judges are now drawn—because, by the nature of their profession, they come directly into contact with life.
When one of the workmen to whom reference has been made goes before a High Court judge in a compensation claim—probably the most important event in his life; his whole future life probably depends on it—it is not a great deal of consolation to him, nor to the employer defendant, to know that the judge trying the case might never have been in a factory. That is possible under the existing system.
The first thing which the Bill should have done was to broaden the base from which our judges are recruited. Particularly, it should have included the 21,000 solicitors. I am advocating that not just because they are solicitors, but because 1552 they have legal knowledge. Indeed, like my hon. Friend the Member for Stirling and Falkirk Burghs I go further and say, "legal degrees".
The remoteness of the Bench is often criticised in films and on the radio. The comedian's idea of the Bench is certainly not true. But the public are very perspicacious when it comes to an institution which has made itself remote from ordinary life. There are jokes about judicial ignorance. The sort of thing which happens in court when a learned judge leans forward, full of judicial ignorance, and says, "Who or what is Twiggy?" may get a quick laugh, but it emphasises the remoteness of the Bench in the public mind from ordinary every day life. Whether it is true or not, that is the public's impression of the Bench.
§ Sir P. Rawlinson
If that is a valid argument, what would the hon. Gentleman say was the public's view of Members of Parliament?
§ Mr. Oakes
It is true that our image is somewhat tarnished. The Government are trying to do something about it by reforming this institution and the other place in this Session and by actively trying to make this a more modern, more alert and more alive place. All that I ask is that we pay some attention to bringing the courts as well as ourselves up to date and not merely increase the number of judges available to try cases.
There is a lot of restrictive practices in the courts. There are restrictive practices when it comes to the intake of the Bench. I do not think that there is any doubt that there are many restrictive practices in the courts. They make Mr. Jack Dash look like a bungling amateur, and yet we are permitting them to continue and carrying them on in this Bill by increasing the number of judges.
I should like to put a few questions about the system of courts which no doubt will be considered by the Beeching Committee and to ask whether some of the things which I propose to mention are delaying cases. Is the circuit system desirable, modern and efficient in 1967? Because in Tudor times the King's judges set off from London on horse and went into the fresh air of the provinces for long periods, should we continue the tradition of assize courts, of courts of 1553 oyer and terminer and general gaol delivery? When Manchester is only just over two hours by rail away from London, would it not be better, as the Law Society suggested in its recommendations, which no doubt my right hon. and learned Friend the Attorney-General has seen, to have area courts and district courts?
What about vacations? Is it right in the modern age for courts to shut down altogether throughout the country for long periods? What about modern buildings? Court rooms today often look no different from court rooms of 100 or 200 years ago. Such elementary inventions as the telephone have not reached the court rooms. Messengers travel backwards and forwards, and delay is caused as a result.
The hon. Member for Colchester (Mr. Buck) rightly stressed the importance of the judicial system revolving round the litigant and the layman instead of round the judge. It is true, as the hon. Gentleman said, that witnesses, litigants, solicitors—the whole apparatus of law on both sides—can be kept in a court room for several days waiting for a case to be heard in case the learned judge finds himself with half an hour in which he has nothing to do. It is quite wrong that the court should revolve in that way around the judge. It will not be cured by appointing more judges. It may be cured if we look at the assize system, the long vacation and the whole of the processes of the court, whereby a lot must be done in a very little time and, consequently, everybody must be there in case one precious moment of that time will be lost.
The Bill is a modest one. It is too modest. I wish that my right hon. and learned Friend the Attorney-General had included a lot of those other measures and reforms which are sorely needed by the courts. It is an easy way to deal with things to say that we will increase the number of judges and hope that that will solve the problem. I do not think that it will. In the Bill, instead of the reforming zeal which, I know, my right hon. and learned Friend has, there is what was referred to in the House yesterday by my hon. Friend the Member for Liverpool, Toxteth (Mr. Crawshaw), the dead hand of Whitehall, and the dead hand of Whitehall has behind it here the 1554 dead weight of the prejudice of centuries in the legal profession.
Although my right hon. and learned Friend obviously cannot promise it to us today in the Bill, I hope that in the very near future, in this Session, certainly within months of receiving the report of the Beeching Commission, something will be done to bring our courts up to date, as we are endeavouring to bring this House up to date.
§ 6.22 p.m.
§ Mr. S. C. Silkin (Dulwich)
In listening to what my hon. Friend the Member for Bolton, West (Mr. Oakes) has said about the narrow field from which the judiciary is drawn, I wondered whether I should, perhaps, commence my remarks by declaring an interest. Having said that, however, I am bound to say that I agree with a great deal of what he said. I hope that in due course, when the debate is over, he will reward me by telling me who or what is Twiggy.
It is fashionable in the course of these debates for every speaker to express almost at the outset of his remarks his respect for the judiciary, and I would not wish to fall behind in that. I certainly have a great respect for the intellectual calibre of those who are appointed to the Bench. I would not presume to go so far as to say that our judiciary is the best in the world; I do not know enough about other judiciaries to be able to make that claim. I have met members of judiciaries of other countries of Europe, the United States and a number of countries throughout the world whose judiciary is of a very high standard.
One thing that certainly has impressed me very much, however—and this arises largely from what my hon. Friend the Member for Bolton, West has said—is that the very fact that our judiciary is confined to a relatively narrow section of the community, and perhaps, still more, the general narrowness of the education which is required to go to the Bar and thence to the Bench, is a factor which inhibits the breadth of the knowledge of life and the scope of experience of those who administer justice.
In particular, I would very much hope to see a great extension in our legal education system of the field which is studied by prospective lawyers, so that it 1555 is not, as so often happens today, and certainly in the days when I was studying law, confined purely to law and very closely allied matters, but embraces the much wider field of sociology and social affairs, as it does in some of our newer universities. I am quite certain that without a knowledge of the world and of the way the world works and ordinary people think, it is impossible to do proper justice on the bench.
A subject which has been much canvassed, on both sides of the House, is the convenience for litigants of the present system. I agree very much with my hon. Friend that it is not enough to do what the Bill does and simply to increase the number of judges, welcome and necessary though that may be. I welcome, incidentally, the provisions of Clause 1 (2), as a result of which I hope that when we find in the future that there is need for an increase in the number of judges, it will not be necessary every time to bring legislation before both Houses of Parliament. It has always seemed to me that that is a waste of time of the House.
When one speaks about the convenience of litigants and the system as a whole, whatever we may say about the ability of the judiciary, the fact is that our system has a musty smell about it. In particular, the point has been made, and I emphasise it as strongly as I can, that the system of the courts gives first priority to judicial time and only second priority to the time of witnesses and of those who are to take part in litigation. I do not see why that should be essential. I know that we have gone some way towards meeting that criticism by our system of fixed dates in the courts. It seems to me, however, that that goes only part of the way towards meeting the criticism.
I sometimes practise in the Lands Tribunal and the planning world, where in each case dates are fixed for every proceeding, whether before the Lands Tribunal or before an inspector of the Ministry of Housing and Local Government or of some other Ministry, as a result of which it is possible for people to know precisely when their case will be heard and to make the necessary arrangements with the minimum of inconvenience to all concerned. Bearing in mind particularly the immense number of planning appeals, for example, which take place 1556 in the course of a year—they may not be as numerous as actions in the courts, but they are still an immense number—I find it difficult to understand why a similar system cannot be introduced in the courts. It seems to me that the only matter which is standing in our way is the unwillingness of successive Governments to find the necessary finances to enable that to be done. I hope at least that when this debate is closed, we will hear of a firm intention on the part of the Government to move as rapidly as possible in that direction, even if it cannot be accomplished all at once.
As the hon. Member for Ormskirk (Sir D. Glover) pointed out, that also affects very largely the delay in bringing cases to trial. The hon. Member quoted an instance of a case which had been hanging fire for five years. It is only fair to point out that delays of that kind are much more likely to be delays in negotiation and in the processes of preparation than to be caused by the mechanism of the courts. None the less, there are considerable delays caused by the very mechanism of the courts. There is certainly extraordinary delay even in the county courts, where a case will go on, will be unfinished, will be adjourned for a matter of months, will then be unfinished again, and adjourned for a matter of months again. I can remember a case in my own experience when practising in those courts. It was a year from the day on which the case was opened to the day on which the judge gave his judgment, because of a series of adjournments of this kind.
It is quite impossible for the facts to be properly appreciated and assimilated if there is that kind of system, and it is equally impossible, in my judgment at any rate, for witnesses to be sure of their facts if they are to have to give evidence about them, not within weeks or months of the occurrence of the event, but, very often, three or four or even five years afterwards. How in the world can people possibly give an accurate account of a road accident, for example, many years after it has taken place? The greater the delays of that kind which occur the more litigation becomes a matter of pure chance and a matter of whose memory appears to be the better, rather than a matter of the justice of the case.
1557 One of my hon. Friends from a Scottish constituency referred to the narrowness of the field of the Scottish Bar from which the Scottish Bench is drawn. I would not like to follow him into that country, but it brings me back to a point which my hon. Friend the Member for Bolton, West made about the English Bar. The mustiness of which I spoke about the judicial system undoubtedly affects the legal profession also. I think some steps have been taken lately to try to remove some of that mustiness, but it always seems to me that there is from time to time a burst of enthusiasm, particularly when some particular practice becomes a subject of public scrutiny, and then the enthusiasm gradually dies down and very little is done. Yesterday morning their Lordships' House in their judicial capacity removed a small part of one of the restrictive practices which affect the profession of the Bar, and there are many that affect both branches of the legal profession. It was a very small part, and, in my view, in doing so, they have created more anomalies than they removed.
I myself am very pleased that the Government have thought it right to refer to the Monopolies Commission the structure of the legal profession, and I hope that there will be a very wide-ranging inquiry into that structure in order to remove some of that mustiness, but the mustiness applies not only to the profession, it applies very much to the structure of the courts and the system of the courts.
I hope that the Beeching Committee will produce some sort of regional system, though I agree with my hon. Friend the Member for Bradford, East (Mr. Edward Lyons) that it would be a great pity if that produced a system of entirely full-time, permanent criminal judges, because, quite frankly, I think that whatever may he said about the excellence of our judiciary generally it does not apply to anything like the same extent to the full-time criminal judges. I think that it is a bad thing to have to rely too much upon them, and I hope, therefore, that the regional structure which I foresee will be accompanied by a continuation in some form or another of the part-time criminal judge judicial system which gives the experience my hon. Friend has referred to.
That leads me to another form of experience which it seems to me High Court 1558 judges could have. I have never understood why we are so reluctant to promote county court judges to the High Court bench. We do it occasionally. I think the answer is that there is a certain dilemma about this. The dilemma is that so long as we promote very few county court judges to the High Court bench the cream of the profession will not opt to become county court judges, and because the cream of the profession does not opt to become county court judges there fore there will not be sufficient excellent county court judges to promote to the High Court bench. How we get out of that diemma is very difficult to see, but I would suggest we could get out of it if a bold, enlightened Lord Chancellor, such as, I believe, we have today, were to make an announcement that as a matter of policy in the future there will be much more promotion from the county court bench to the High Court bench.
§ Mr. Hector Hughes
Would my hon. and learned Friend agree that it is not a complete dilemma? There have been in recent years several instances of county court judges promoted to the High Court bench and they proved very successful judges.
§ Mr. Silkin
I am much obliged to my hon. and learned Friend. I did say that there had been one or two instances of them, and the very fact that they have proved, as my hon. and learned Friend said, highly successful seems only to reinforce the point I made.
§ Mr. Silkin
What I am saying is that there has been a certain slowness—almost cowardice—about this process, which seems to me to be the result of the dilemma I have referred to. I hope that we shall be able to break through that dilemma by making it clear that in the future that process will be much accelerated.
Finally I want to take very briefly two aspects of the court system. They have not been mentioned yet. First of all, the way the courts are, broadly, organised, which is a relic of many many years past—the present division in the Probate, Divorce and Admiralty Division and the other Divisions of the High Court.
1559 We are likely to see in the near future, hope, a major, radical reform in legislation on many branches of the law affecting the family, and I would like to see a genuine family court, integrated from top to bottom, growing up, being established, and separate from those utterly irrelevant branches of the law which are at present joined to it, in one case the law affecting wills and shipping, and in the other case the law affecting companies, trusts and mortgages Let us have a system of experts in the family. I would certainly see within such a family court a good deal of scope for the suggestion of my hon. Friend the Member for Bradford, East about increasing the number of women judges.
The other point on structure I would like to make is this. I accept entirely the need for an increase in the number of Lords of Appeal in Ordinary so long as we have our three-tier system, but is the three-tier system really necessary still today? In many countries there is a single appellate court which seems to work as a system perfectly well. I entirely agree that many of the judgments which are handed down by their Lordships are of very great value and that they form an essential part of the law of the land. But is this really a necessary way of accomplishing that objective? Is it not possible, for example, to have a single appellate court in which, where matters of really grave importance to the law are involved, an enlarged court hears the appeal? Within the Court of Appeal, if that system were introduced, necessarily there would be people of the very high quality which is found among those who are at present Lords of Appeal in Ordinary. The Court of Appeal, therefore, would be of a higher standard and a more experienced court than it is today, and one would hope that the occasions for regarding its decisions as wrong would be that much reduced.
I hope, again, that that is a matter which will be considered very seriously. These are questions involving the whole structure of our court system, and, whilst this is a modest and necessary Bill, it must not be thought that, in passing it, these much graver matters should be overlooked. Within the confines of this Parliament, I hope that we shall have the necessary investigation and announce- 1560 ments enabling us to know that, in the future, the system will be radically changed and modernised.
§ 6.41 p.m.
§ Mr. Gerard Fitt (Belfast, West)
At this late stage in the debate, I intend to limit my remarks to that part of the Bill which makes provision for an increase in the number of judges in Northern Ireland from two to four. My right hon. and learned Friend's remarks seem to indicate that it is the intention of the Government to fill the two vacancies immediately, but I wondered if it was intended to appoint one immediately and the other at some time in the future. The Attorney-General said that there was an urgent need for new judges in Northern Ireland, which would seem to indicate that there are about to be two more appointed.
§ The Attorney-General
If I can help my hon. Friend, it is the intention to appoint one at once, as soon as the Bill goes through.
§ Mr. Fitt
I thank my right hon. and learned Friend. I had intended to focus attention on the appointment of these two judges from the standpoint that the vacancies should be filled only by men of experience and understanding and with the required qualifications. I have been helped considerably in my attitude by the opening remarks of the right hon. and learned Member for Epsom (Sir P. Rawlinson), in the course of which he called for the same thing.
In the past, appointments to the High Court in Northern Ireland have not occurred very frequently, because judges in that court seem to be addicted with longevity. It would appear that, when appointments have been made in the past, consultation has taken place with the Northern Ireland authorities before making them. I was wondering if that is the position now, or if the appointment is to be made by the Lord Chancellor of the United Kingdom.
If consultations have to take place with the Northern Ireland authorities, I and many other people in Northern Ireland will be filled with a certain amount of apprehension. We know that, in recent months particularly, there has been great controversy in Northern Ireland about the 1561 filling of legal appointments. If a decision is to be taken in the immediate future, I hope that it will be taken by the Lord Chancellor here after he has been made aware of all the facts and of the persons suitable to fill the appointments.
Once a judge has been appointed, in recent times the tendency has been for him to fill the office for a number of years. If a mistake is made in the original appointment, it may be that we shall have to live with it for many years.
Noticing that the proposed legislation calls for an Amendment to the Government of Ireland Act, 1920, I have listened to the debate with care. I have heard that there has been an increase in the number of judges in Scotland and England on numerous occasions, but that this is the first time since 1920 that a proposal has been put forward for an increase in the number of judges in Northern Ireland. Having spoken to many members of the legal profession in Northern Ireland, it is clear that there is a need for more judges. Like many other parts of the United Kingdom and of the world, Northern Ireland has experienced a recent upsurge in crime and in civil cases. While I am no legal luminary or expert on the legal profession, I a m reliably informed that there is a serious backlog of cases waiting to be heard in Northern Ireland.
However, I want to seek a specific assurance from the Attorney-General that, when this appointment is being made, it will be made in the full knowledge that, since the setting up of the State of Northern Ireland, all legal appointments under the control of the Northern Ireland Government have caused considerable controversy because there has been a decided political slant to each one of them. I understand that my right hon. and learned Friend has received a circular from many eminent members of the legal profession in Northern Ireland protesting at the political slant which appears to have activated appointments in the profession in. Northern Ireland.
I agree with the appointment which is about to be made, but I ask the Attorney-General to ensure that the person appointed to fill the vacancy is chosen on the grounds of suitability, experience and qualification, and that political considerations play no part in the choice.
§ 6.48 p.m.
§ Mr. Stratton Mills (Belfast, North)
I join with others in welcoming the Bill and with the hon. Member for Belfast, West (Mr. Fitt) in saying that there is undoubtedly a need for another judge to be appointed immediately in Northern Ireland. The Government are wise to make provision in this legislation for the appointment of a second judge at a later date if that is found to be necessary.
There are one or two brief remarks which I want to make about the hon. Gentleman's speech, but first I congratulate him on becoming more accustomed to keeping within the rules of order of the House, about which I am sure you, Mr. Speaker, are as glad as I am. I do not think the hon. Gentleman would disagree that the judges who have been appointed by the Westminster Government have always been appointed on merit. Looking through the list of present and past judges, I do not think that he would disagree with me on that.
The hon. Gentleman asked whether the Northern Ireland authorities were consulted about appointments. As he rightly pointed out, they are essentially a matter for the Lord Chancellor. I do not know the answer, but I should have thought that in any such appointment the Lord Chancellor should properly consult the Lord Chief Justice of Northern Ireland. I would have thought that would be automatic. I am sure that the hon. Gentleman would not disagree with me on that, either.
The hon. Gentleman made the charge that all the legal appointments under the control of the Northern Ireland Government had been made on a political basis—
§ Mr. Stratton Mills
I should be out of order if I attempted to answer that charge in great detail, but if I could have your indulgence for a moment, Mr. Speaker, I would remind the House that, of the six appointments since 1954, it is true that three were Unionist Members of Parliament, but I do not think that the hon. Gentleman will quarrel with me if I said that they all had very extensive practices at the Bar which merited their appointments.
1563 There will be very few members of the Bar of any political viewpoint who would suggest that appointments to the county court bench are not strictly on merit. Two of the six appointments were of Roman Catholics. They were appointed on merit and not on political grounds.
§ Mr. Fitt
On a point of order. Mr. Speaker, I deliberately did not go into the question of appointments. I referred to them generally. Is it right that the hon. Member for Belfast, North (Mr. Stratton Mills) should have the opportunity, because if he wants to read the scripts and the record of Northern Ireland I can bring him in one within five minutes.
§ Mr. Stratton Mills
The hon. Member for Belfast, West made the accusation without substantiating it. I hope I am not trespassing unduly on the time of the House if in a few sentences I put the record right and let the facts speak for themselves.
§ Mr. Speaker
I was addressed on a point of order. I am grateful for the help of the hon. Member for Belfast, North (Mr. Stratton Mills) in dealing with it, but the point of order was raised with Mr. Speaker.
I am grateful to the hon. Member for Belfast, West (Mr. Fitt) for raising a point of order at all. His speech was entirely in order. If the hon. Member for Belfast, North reflects on any of the magistrates or any of the judges he will be out of order. It is not out of order, however, to compliment them.
§ Mr. Stratton Mills
To recap my thoughts, I had said that of the six county court judges appointed since 1954 three were formerly Unionist Members of Parliament, two were Roman Catholics and one was strictly non-political. I think that the last one had been adopted as a Liberal candidate for an English seat in the 1930s, but I hope that is no reflection on anyone, Mr. Speaker.
This Bill is to be welcomed. I hope that the appointment of the new High Court judge can be made soon, because there is much urgent work to be done. I welcome the Bill.
§ 6.52 p.m.
§ Mr. Hector Hughes (Aberdeen, North)
I want to make one point about Clause 1(1), which provides:The maximum number—(a) of Lords of Appeal in Ordinary shall be eleven …It has no limitation or indication about the qualifications of their Lordships, and I remind the House that they are drawn from every country in the British Commonwealth. That means that each is trained in a different system of law. The bases of the various laws in the various countries are similar, being based on the English system of law, except for Scotland. They are most distinguished judges; they are probably the most distinguished in the world.
Being drawn from the widest fields, judges are learned in a very wide way, and they are one of the most respected tribunals in the law. They are learned in the law of every country from which they come, but the law of each of those countries is different. While it is based upon English law, by the nature of the exigencies of each country and the Statutes passed to deal with them, each system of law in the course of years acquires a difference. Therefore, the judges, being human, cannot be versed in every system of law, a fortiori in Scotland, because Scottish law is quite unlike English law.
Scottish law is not based on English law; it is based on Roman Law—the Institutes of Justinian. But not only that difference occurs. There is the difference which arises from exigencies and the history of Scotland, so Scottish law is very different from English law. Yet the Lords of Appeal in Ordinary, who are 11 in number—
§ Mr. Hughes
—have only two Scottish lawyers among them. Is it reasonable that they can adjudicate upon Scottish law and is it reasonable that Scottish litigants have to come from Scotland to have their appeals heard by that tribunal?
It is a very august and respected tribunal, and when there are Scottish cases one or perhaps both of the Scottish law lords take part in their adjudication. But my point is that two out of 11 is not enough.
§ Mr. Hughes
Yes. My point is that there should be more Scottish judges amongst them. Yet Clause 1 makes no provision about the qualifications of the judges who will be so appointed. The two who adjudicate at present are very distinguished judges. Lord Reid was for many years a Member of this House, and Lord Guest served for many years on the Scottish Bench prior to becoming a Lord of Appeal in Ordinary.
My point briefly is that this august and learned tribunal would be greatly enriched if it had more Scottish lawyers. The Clause should provide some conditions which would enable more Scottish judges to be appointed Lords of Appeal in Ordinary.
§ 6.57 p.m.
§ Mr. G. B. H. Currie (Down, North)
I make a very brief intervention on this most important matter, following on one or two points which have been made in the course of the debate.
First, I congratulate the right hon. and learned Attorney-General, but I want to go back to what was said about the desirability of the wording of the Statute from the start being as simple as possible so that there should be the least possible difficulty in a court coming to a decision about the meaning of it.
I congratulate the Attorney-General on the extremely simple wording of this Bill. It is admirable. It does everything that is needed, and it does it in one and a half short pages. The Bill makes very profound alterations in the size of the judiciary throughout the whole of the United Kingdom, but it is done, in this very brief space of print.
There is one matter about which I am not sure. Clause 1(d) deals with the maximum number of judges in Northern Ireland. It provides,The maximum number—(d) in Northern Ireland, of puisne judges of the High Court shall be four.When one turns to subsection (6), that provides:In paragraph 1(1) of Part II of Schedule 7 to the Government of Ireland Act, 1920 (which provides that the High Court in Northern Ireland shall consist of the Lord Chief Justice of Northern Ireland and two puisne judges),1566after the word 'and' there shall be inserted the words 'not less than'.Which Statute will govern the number of judges to be appointed? Will it be the Government of Ireland Act, 1920, in which case there will be freedom to appoint any number, provided that it is not less than four, or will it be this Bill, which says that in Northern Irelandpuisne judges of the High Court shall be four"?It is only a drafting point, but it is one on which something might turn in the years ahead.
I think that most of us in the House would wish to offer our congratulations to the judiciary in Northern Ireland. Consisting as it does of so few members, it has carried out its circuit duties as well as its other duties in the Royal Courts of Justice in Belfast. It really is quite remarkable that there have been only three judges, the Lord Chief Justice and two puisne judges, and yet the population of Northern Ireland now totals nearly 1½ million. These judges have to travel to assize towns in addition to their other work, and I agree with what my hon. Friend the Member for Belfast, North (Mr. Stratton Mills) said about their work.
Looking back over the years, it is obvious that appointments to the High Court Bench in Northern Ireland have been made purely on merit. I believe that Mr. Justice Sheil would certainly not have been classified as a member of the Unionist Party. He is one of our most distinguished judges.
I hope that the Attorney-General will be able to find some way, or recommend some way, of cutting down the great delays which occur in the courts because of the necessity to fill the civil lists. One knows that the main background to this is the fact that so many settlements of civil actions take place at the court door itself. It is extremely irritating for parties, for their witnesses, and, if I may say so after 35 years' practice, for counsel, too, to have to go to court, perhaps day after day, because the list has not collapsed and the case in which one is concerned has not been reached.
I do not see how one can avoid the difficulty of long lists. It is a matter 1567 which must receive attention, and I tend to agree with what has been said today, that it would perhaps be better for a distinguished judge to have to wait for a few hours before another case comes on for trial than to keep a large section of the public, witnesses, parties, counsel, expert witnesses, and so on, waiting in court day after day for a trial to start.
I conclude by asking the Attorney-General to let me have replies, if he can, to the questions which I have asked.
§ 7.5 p.m.
§ The Attorney-General
I hope that I may have the leave of the House to reply to the matters which have been raised during this valuable and helpful debate.
The state of justice, the speed with which cases are brought to trial, and the fairness and correctness of the conclusions, depend, as we have heard traversed during this debate, largely on three things—the the state of the law itself, the efficiency of its administration, and the numerical strength and quality of those who man the courts, the last named being to some extent very much involved in the second consideration.
The Bill is confined to the last aspect. namely, the strength of the judiciary but the fact that that problem has been isolated in the Bill as a necessary and urgent matter that can be dealt with in this limited way in no way reflects any lack of concern on the part of the Government in the other two major factors relating to justice, the law itself, and the structure and quality of its administration, and I take pride in belonging to an Administration which has introduced the Law Commission as the most significant step towards reforming the law which the history of our law has ever known. Indeed, as one hon. Member said, the remarkable thing is that we have existed for the last 700 years without the Law Commission.
Apart from the work of the Law Commission itself, we are in an exciting era of law reform, a process with which various commissions have been concerned since before this Administration came in. The Law Reform Commission, the Committee dealing with reforms in the civil law, and the work of special committees which have been set up, show that there is a great ferment in the law, and law 1568 reform has certainly become a major aspect of the life of those concerned with the law. I am happy to think that the impetus, happily, comes largely from lawyers themselves, and it is gratifying and right that that should be so.
With regard to the administration of justice, as I said in opening the debate, the work of the Beeching Commission, the work of other bodies which are concerned with various problems of administration, such as the Payne Committee on the enforcement of judgment debts, and the work which the Law Commission is doing in matters related to the administration of justice, the work of various other committees, is continuing actively, and we await, almost with impatience, the outcome of the quite fundamental review which is being made of our present system of administering justice.
My hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin) spoke of the musty smell that lies around the courts, and he thinks, also the professions. A good deal of the mustiness has been, and is being, shaken, and the process will continue. One of the problems facing us is the sheer and total inadequacy of court buildings. I am glad to see the hon. Member for Worthing (Mr. Higgins) in the Chamber. I was pleased to be present with him at the opening of the new law courts at Worthing. They are a splendid indication of the sort of standards which we ought to be enjoying in the courts. I agree with all the criticisms which have been made that the broken-down and antediluvian state of many of our court buildings makes life miserable for all who have anything to do with them. It is right that there should be this considerable advance in new court buildings which the Government have embarked upon. This year we shall spend about £5 million on new court buildings.
Some detailed proposals concerning the administration of justice have been ventilated by hon. Members on both sides of the House. The House will not expect me to deal with them all, but I shall ensure that the suggestions which have been made are brought to the notice of the Beeching Commission and other committees who are actively engaged in considering these matters. I am sure that the Commission will examine them very carefully. I have particularly in mind the interesting suggestions made by one 1569 of my hon. Friends concerning a number of matters concerning the circuit system and the arrangements for the courts. These matters need very careful consideration.
Nevertheless, the urgent problem which must now be faced is that the mere shortage of manpower on the bench is causing delays, and the increase in the number of judges will reduce those delays. I entirely agree that it is intolerable that we should have a situation in which a man can remain in gaol for month after month, and when he is tried he is acquitted, and there is no remedy for him. It is a scandalous state of affairs, and it is right that anything which can be done to eliminate that delay in bringing cases to trial, especially criminal cases, should be done.
The greatest delays are occurring in the courts at the Old Bailey, where the enormous pressure of the increase in crime in the London area has subjected the arrangements there to intolerable strain. I am glad to be able to tell the House that the new building which is being erected there will be finished by the end of 1970. It will provide 12 new courts. Three additional courts were brought into use in the Old Bailey in June of this year, and there will be another in use in 1968, so that, within the limits of our resources and the limited space in the Old Bailey area, we are pressing on towards a solution of the critical problem of court accommodation.
As for criminal appeals, I entirely agree with what was said by my hon. and learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman). It is intolerable that a man who may be acquitted on appeal should have to wait in custody for month after month before his appeal is heard. In that respect, since the beginning of October two courts in the Court of Appeal have been sitting to dispose of criminal appeals and an improvement is undoubtedly being effected in the criminal appeal area. One of the major causes of delay lies in the provision of shorthand transcripts, but priority is being given to this. The judges are working enormously hard to clear the arrears in criminal appeals, and the position has much improved.
Emphasis was placed by many speakers—including the right hon. and 1570 learned Member for Epsom (Sir P. Rawlinson), for whose support for the Bill I am grateful—upon the necessity of maintaining the high standards of the judiciary. With that the whole House would agree. I am happy to think—as I am assured is the case by my noble and learned Friend the Lord Chancellor—that there is a pool of potential recruits at the Bar for the appointment of the additional judges. I know that a view has been expressed by one of my hon. Friends that solicitors should be available, and be selected, for appointments to these posts, but the training of the Bar and its experience specially qualifies it—in a way which the nature of a solicitor's work and practice does not—for holding these major judicial appointments.
I am not sure whether the picture that has been presented, of barristers being so remote from learning in life, is as accurate as all that; most judges who are appointed have spent their working lives at the Bar. Their clients have been men and women from every section and social class in the community, with their very real problems. Once a man has done about 300 or 400 divorce cases, criminal cases, accident cases or running down cases, starting in the magistrates' courts and going right through into the stratosphere of the House of Lords, there is little that he does not know about the difficulties and facts of life.
My noble and learned Friend the Lord Chancellor was telling me about trade unionists and businessmen whom he had met who, after six months as justices of the peace, had said, "It is like going back to school. I have discovered that I never knew what really goes on in life." I am satisfied that there is, happily, a quality available at the Bar for the manning of these posts.
§ Mr. S. C. Silkin
Does not my right hon. and learned Friend agree that there is everything to be said for the maximum facility of exchange between the two professions, so that the qualifications of a solicitor may be enjoyed by one transferring to the Bar and vice versa, and thence to the judiciary? Secondly, does not he agree that despite his recent remarks there is also much to be said for encouraging the aspect of legal education to which I have referred in sociology 1571 and similar sciences for those who take legal training at universities?
§ The Attorney-General
I do not quarrel with either of the propositions put forward by my hon. and learned Friend.
I was asked by the right hon. and learned Member for Epsom about appointments from the county court bench to the High Court bench. That is done. There is no resistance against it. The test that my noble and learned Friend undoubtedly applies in making appointments to the judiciary are tests of competence and ability.
My hon. Friend the Member for Belfast, West (Mr. Fitt) told me that he would have to leave for another appointment, but in the context of what he said I can say that appointments to the High Court bench in Northern Ireland are on the recommendation of the Lord Chancellor, but it would be surprising if he were not to consult, among others, the Lord Chief Justice of Northern Ireland in making those appointments. The test there, as elsewhere, will be the test of the ability of a judge and his suitability, and nothing else.
I could deal with a number of other matters, but many come under administration, which is not perhaps immediately within the contemplation of the subject matter of the debate. However, perhaps I may deal with the matter raised by the hon. Member for Down, North (Mr. Currie) about Clause 1(6). This subsection amends paragraph 1(1) of Part II of Schedule 7 to the Government of Ireland Act, 1920, which provides that the High Court in Northern Ireland shall consist of the Lord Chief Justice, and two puisne judges.
This Bill is drafted so as to enable any Order in Council authorising a future increase in the maximum number of judges to operate by way of amendment to Clause 1(1), so enabling the current position to be readily ascertained by reference to the revised Statutes which are kept noted up annually. It is thought desirable for this reason not to amend para- 1572 graph 1(1) of Part II of Schedule 7 to the Act of 1920 by including a reference to four puisne judges instead of two. This is the effect of bringing the legislation relating to Northern Ireland into line with that relating to England and Wales. That explanation may lack the clarity which the hon. Gentleman referred to in the Bill itself, and it is gratifying to have a compliment of that kind.
Dealing with the state of the law itself, a massive attack is being made upon it, and I am sure that all of us are exhilarated to think that the process of codification, for instance, of the criminal law is in the next programme of the Law Commission. I am grateful to the House for the response which it has given to the Bill and I hope that it may now take its remaining stages with due speed through Parliament.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).