HC Deb 18 December 1972 vol 848 cc1071-80

10.51 p.m.

The Lord Advocate (Mr. Norman Wylie)

I beg to move, That the Maximum Number of Judges Order 1972, a draft of which was laid before this House on 28th November, be approved. The order is made under Section 1 of the Administration of Justice Act 1968. It relates to Scotland and Northern Ireland. It does not apply to England and Wales. Under the Act, by virtue of Section 1(1)(c) the maximum number of judges of the Court of Session is fixed at 19, and under Section 1(1)(d) the number of puisne judges of the High Court of Northern Ireland is fixed at four.

As I am sure the House is aware, under Section 1(2) the Queen may by Order in Council alter these figures. No recommendation may be made to Her Majesty in Council to make an order under the section unless a draft has been laid before Parliament and approved by resolution of each House.

Accordingly the order deals with the number of judges in the Court of Session in Scotland and the puisne judges in the High Court of Northern Ireland. I propose first to draw the attention of the House to the position of the Scottish judiciary.

Before I deal with the Scottish position, may I with your leave, Mr. Deputy Speaker, and that of the House, pay a brief tribute to Lord Grant, the Lord Justice Clerk of Scotland, who was killed with two other people a month ago in a road accident. Lord Grant was a Member of this House between 1955 and 1962. He was Solicitor-General for Scotland and later Lord Advocate. I took the liberty in court a few weeks ago of stating—and I think that I was entitled to do so—that his untimely death in such tragic circumstances was deeply felt by his many friends at Westminster as well as in Scotland.

I am delighted to congratulate Lord Wheatley on his appointment as Lord Justice Clerk of Scotland in room of Lord Grant. Lord Wheatley was also a Member of this House for many years and was Lord Advocate in Earl Attlee's Administration.

In 1968, when the present Statute was enacted, there were 18 judges in post in Scotland. That had been the situation since 1966. In that year it was deemed appropriate that provision be made for a nineteenth judge to be appointed. No appointment was made until 1971 when the additional appointment was taken up because of the increasing volume of civil and criminal business with which the Scottish judiciary had to contend.

Today I am inviting the House to approve the draft order so far as Scotland is concerned in the light of the continuing increase of judicial business in Scotland. While I do not wish to go into statistics in any great detail, the facts speak for themselves. They are set out in the Civil Judicial Statistics, Command Paper 5028, which was published in August of this year, setting out the statistics for 1971.

Table 1 of the statistics shows a substantial increase in the volume of civil business with which the Court of Session is concerned. It bites most effectively in the work of the outer house, the work of the Court of Session as a court of first instance. One only needs to consider the figures revealed in the table to realise what a tremendous increase there has been in the work of the Court of Session particularly as a court of first instance, and particularly in the last few years.

Leaving aside petitions, interdicts, inner house appeals and the more specialist work of the court, in 1971 about 700 additional civil cases were begun and by the end of this year a further 1,000 cases will have been started—that is to say, about a 10 per cent. increase in 1971 and a further 12 per cent. in 1972.

So much for the civil side. The criminal statistics of course tell a similar story. I think it is more accurate to look at the number of judge days spent on the criminal side. Again, over the last two years there has been a very substantial increase. In 1970…71 the figure of judge days spent on criminal work was very close on 400; the total for 1972, according to the calculations I have had made, is likely to be almost 100 in excess of that, or about 480 judge days, in itself an increase of nearly 25 per cent.

In addition, in the current session the court is burdened with the work of the Valuation Appeal Court. Every five years under legislation heritable property is revalued in Scotland and there is a right of appeal ultimately to the Land Valuation Appeal Court, and until that work is cleared, which one hopes will be done by about Easter 1973, a very material additional burden is imposed on the court.

I do not wish to elaborate this matter unduly but I assure the House, from my personal knowledge and the discussions I have had with the Lord President of the Court of Session, that I have no hesitation in saying that the Court of Session needs another judge now in order to cope with the work with which it is faced. I commend that part of the order to the House.

In the case of Northern Ireland, as we are all aware the tragic situation in the Province has undoubtedly given rise to increasing pressures, particularly on the criminal side. Even apart from that, however, there has been a substantial increase in the volume of civil work in the court in Northern Ireland and the pressure of criminal work, which is absorbing the full-time attention of two of the four puisne judges, inevitably reacts on the way in which the civil business is transacted. The Northern Ireland court had two additional puisne judges appointed in 1968, and that undoubtedly had an effect in reducing the number of cases which were pending but which had not been disposed of. For a short time the statistics were optimistic but with the increasing volume of criminal work in Northern Ireland the number of civil cases which are pending and which have not been disposed of has been growing year by year.

Likewise cases for trial at assizes by puisne judges in the Province have increased in number from 332 in 1968 to over 410 last year, and indeed my latest information is that at the beginning of this month the figure had reached a total of 645.

There are clearly special circumstances affecting the situation in Northern Ireland. It is clear, in my respectful submission, that the High Court in Northern Ireland equally needs an additional judge now. For that reason I also commend that part of the order. Indeed, I commend the order as a whole to the House.

11.01 p.m.

Mr. S. C. Silkin (Dulwich)

I am grateful to the Lord Advocate for the very clear and cogent way in which he has put the case for the order. I shall not attempt to deal with what is to me the somewhat strange language which arises in relation to the Scottish part of it. My hon. and learned Friend the Member for Edinburgh, Leith (Mr. Ronald King Murray) is much more competent than I to do so.

Perhaps I might be permitted to follow the right hon. and learned Gentleman in offering my congratulations to Lord Wheatley on his new appointment. I had the great good fortune, although I was not a Member of this House when he was a Member, to work very closely with him when he was a member of the unhappily abortive Royal Commission on the Penal System. His incisive mind and clear down-to-earth temperament were of tremendous value to that inquiry and made a very deep impression. I am certain that he will carry out his new responsibilities admirably.

As regards Northern Ireland, the case made by the right hon. and learned Gentleman in this House and by the Lord Chancellor in the other place is one which cannot be gainsaid. Indeed, looking at the statistics, both those put to us by the right hon. and learned Gentleman and those given in the speech of the Lord Chancellor, one wonders whether an increase of one in the number of judges is likely to be adequate and whether it might not have been better to cater for a larger number, though not necessarily making the full appointment at this stage.

I support the order as far as it goes. I do so particularly because one of the important factors which arises as a result of the increase in the number of cases awaiting trial is that inevitably one gets to a position where people are kept in custody for longer periods before their cases can be heard and thus there are more people in custody awaiting trial. As we have learned and said on previous occasions, many of those who are kept in custody eventually are acquitted or, if not acquitted, are not punished by custodial sentences.

Although the order does not apply to this country, one knows from the example particularly of London the very serious effect of having an inadequate number of judges to deal in particular with the criminal jurisdiction. I hope that my remarks about the increase which is being made—I have suggested that it might well be even higher—in the number of judges in Northern Ireland will be read in that context. The number of civil cases awaiting trial is important, but we take the view that the most important matter of all is the number of people in custody and the time which they spend in custody.

To what extent is judicial time in both Northern Ireland and Scotland being given to functions which are not specifically judicial? I noted what the right hon. and learned Gentleman said about the quinquennial valuation in Scotland. We order things somewhat differently in England and Wales and judicial time is not normally taken up on those matters save on points of law, and that only rarely. But I noted in the Lord Chancellor's speech the reference to Royal Commissions and other commissions and boards of inquiry which occupy the time of judges in Scotland and Northern Ireland, as they do in this country.

In asking this question I am by no means suggesting that it is wrong that judges should be so employed. Often they are the most appropriate people to be so employed. There have, however, been occasions when one might have thought that taking a particular judge away from his judicial duties to chair a certain tribunal was not necessary and that others might have performed the same task with equal facility and, perhaps, greater knowledge of the subject matter. I do not suggest that that happens often but I hope that the general rule will be, in Scotland, Northern Ireland and England and Wales, that the use of judicial time for these extra-judicial duties will be kept to the essential minimum, because if a judge is taken away from the trying of cases to deal with other matters one inevitably works up the sort of arrears of legal business, including criminal business, to which the right hon. and learned Gentleman referred.

I have one other question regarding Northern Ireland. I note from the Lord Chancellor's speech that, as one might expect, after additional judges were appointed in 1968 more cases were tried but that during this last year the number has fallen back. Is there any reason for that and, if so, will the Lord Advocate explain it? As the Lord Chancellor said, In the last year there has been a virtual explosion in the number of prisoners awaiting trial in custody".—[OFFICIAL REPORT, House of Lords, 14th December 1972; Vol. 337. c. 764.] It is highly undesirable, particularly in Northern Ireland, that on the one hand there should be detention for political reasons and on the other hand a large number of people awaiting trial but kept in custody through either a shortage of judges or, as appears to have been the case in the past year, a slowing down in the rate of the trying of cases.

Subject to those points and any points which my hon. and learned Friend the Member for Leith may wish to make on the Scottish aspect, we on this side of the House will not oppose the order.

11.11 p.m.

Mr. Ian MacArthur (Perth and East Perthshire)

The House will be grateful to my right hon. and learned Friend the Lord Advocate and to the hen. and learned Member for Dulwich (Mr. S. C. Silkin) for the support they have given to the order. I cannot speak about the effect of the order on the justiciary in Northern Ireland, but I agree completely with the point made by my right hon. and learned Friend that there has been a continuing and, indeed, a worrying increase in the burden of business on the justiciary in Scotland.

All of us would want to joint with my right hon. and learned Friend in congratulating Lord Wheatley on his appointment. I say that with particular feeling, because I recall very well that the noble Lord moved some very helpful amendments in another place to the Interest on Damages (Scotland) Bill which I introduced in this House. I remember the helpful and responsible view which he took of the whole matter.

Hon. Members on both sides of the House would wish to join my right hon. and learned Friend in the tribute he paid to the late Lord Grant. We in the House of Commons remember him as a generous, considerate and true friend. While his tragic and untimely death was seen in Scotland as a great loss to the Scottish judiciary, I think that we here saw it as much more than that. It was the loss of a very close friend. We mourn him deeply and extend our deepest sympathy to his family.

There has been a great increase in the burden on the Scottish justiciary, and I cannot say whether it is right to increase the number of judges by one or two or more. However, if my right hon. and learned Friend suggests that an increase of one is right, that is sufficient for me. I am satisfied that we need to increase the number, and I am content to be guided by him as to the right number.

It is important that the course of law —and I speak as a layman—should be seen to be exercised as speedily as possible within the general understanding of natural justice. If this order will achieve that I support it totally, as I believe it will be supported by every well-balanced person in Scotland.

11.15 p.m.

Mr. Ronald King Murray (Edinburgh, Leith)

I should like to associate myself with the tributes which have been paid to the late Lord Grant. There is no doubt that his judicial stature will not be dimmed by the passage of time. I should also like to associate myself with the congratulations which have been paid to the appointment of Lord Wheatley as Lord Justice Clerk.

Nobody would doubt that the statistics which the Lord Advocate has given to the House certainly justify the increase in the establishment of Scottish judges by one. Indeed, I share the doubts expressed by my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin) that it is a modest increase which might have been greater on the statistics alone.

I think we have to look not only at the Scottish but at the Northern Ireland position. Certainly it should not go unrecorded that the establishment of the Court of Session in Scotland in 1532 was 15 judges. Now it has increased to a modest 20. I do not think anybody would seriously argue that an increase of 25 per cent. in the establishment over more than four centuries is excessive.

I should like to put a question to the Lord Advocate on both the Scottish and the Northern Ireland increases. We know that the judges have an increasing volume of civil and criminal business to get through. Of course, the weight of public opinion tends to fall on the side of the criminal business. It is there that the law's delays are most conspicuous and achieve the greatest degree of publicity. But it is important to know to what extent the judicial infrastructure requires to be augmented. It is not much good increasing the complement of judges by the modest figure provided for in the order unless we have the ancillary staff to go with the additional judge. I hope that the Lord Advocate can satisfy us that in both Scotland and Northern Ireland there are sufficient trained ancillary staff in the judicial infrastructure to go with the appointment of additional judges.

I welcome the order as giving a modest increase which is at least justified by the statistics alone. However, it is also right to direct our attention for a moment to the extra-mural, extra-judicial, activities of judges. It would be a sad day for the Government and administration of this country generally if it were felt that Royal Commissions and other non-partisan public inquiries were not to have the services of Her Majesty's judges from time to time. There are some instances when it is appropriate to have a partisan inquiry in which it would not be correct to have one of Her Majesty's judges in attendance or as a member of a committee or commission, but there are many other spheres in which Her Majesty's judges have played a very important role in bringing about changes in the law and administration of the country. Indeed, one need only instance the Local Government (Scotland) Bill at present going through this House and recall that the Commission was chaired by Lord Wheatley, who is now the Lord Justice Clerk. Therefore, it would be a sad day for the administration of this country if the independence of the judiciary were not recognised in this important social function.

11.14 p.m.

The Lord Advocate

By leave of the House I should like to thank hon. Members on both sides for the welcome they have given to the order.

The hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray) referred to the extra-mural activities of Her Majesty's judges. I entirely share the views which he expressed on the valuable part that the judiciary can and does play in public life by chairing commissions and committees of inquiry of all kinds.

One of the problems is that with a small bench any encroachment that is made upon it for this type of public service has a much greater impact on its work than is the case in England and Wales where one has a larger bench. The hon. and learned Gentleman asked to what extent this public service takes place today. There are at present four committees presided over by members of the Scottish bench—that is 20 per cent. of the whole bench.

I should add that the Emslie Committee which recently reported and made certain recommendations with regard to penalties provided for murder recommended that there should be a High Court judge as a member of the parole board in Scotland, and Lord Wheatley, who has just been appointed Lord Justice Clerk, was a few weeks ago appointed a member of the board. One of the problems facing a relatively small judiciary is that if we are to use these highly qualified people for these important public functions there will necessarily be a greater impact on the work of the bench than in a larger jurisdiction.

The hon. and learned Member for Dulwich (Mr. S. C. Silkin) raised the question whether one extra judge for Northern Ireland was enough. All I can tell the House is that that was the request from the Lord Chief Justice of Northern Ireland. In his view that is sufficient for the moment at least. If the situation requires further additions it will be possible for my right hon. and learned Friend the Attorney-General and my noble Friend the Lord Chancellor in another place to come forward with another order.

I am grateful for the tributes that have been paid to Lord Grant, for the congratulations that have been given to Lord Wheatley on his recent appointment and also for the general welcome that the order has received.

Mr. Ronald King Murray

Before the Lord Advocate concludes, I wonder whether he would deal with the question of the judicial infrastructure.

The Lord Advocate

As the hon. and learned Gentleman knows, particularly in the criminal jurisdiction, it is not merely a question of providing more judges. The Crown Office for which I am responsible in Scotland likewise has to be strengthened, and this is in the process of being done.

Question put and agreed to.

Resolved, That the Maximum Number of Judges Order 1972, a draft of which was laid before this House on 28th November, be approved.