§ 4.24 p.m.
§ THE LORD CHANCELLOR (LORD HAILSHAM OF SAINT MARYLEBONE)
My Lords, I rise to move that the Draft Maximum Number of Judges Order 1970, laid before the House on July 9, 1970, be approved. As noble Lords will see from studying paragraph 2 of the Draft Order, its purpose is to raise the maxima of Judges in the Court of Appeal, the High Court and county court respectively. I emphasise that this Motion relates solely to maxima and does not commit either the House or me to particular appointments, which are the subject of quite a laborious procedure in themselves.
May I briefly explain the need and the machinery? Under Section 1(1)(b) of the Administration of Justice Act 1968 the maximum number of Judges in England and Wales was fixed as follows: ordinary Judges of the Court of Appeal, 13; puisne Judges of the High Court, 70; county court judges, 97. Section 1(2) and (3) of the same Act enables the maximum in each case to be increased by Order in Council provided that the draft is laid before Parliament and approved by Affirmative Resolution of each House. The maximum number of county court judges was thus increased from July 1 last year from 97 to 105.
I shall deal first with the Court of Appeal. The increase in the civil and criminal business of the Court of Appeal in recent years has been very large. Civil appeals set down in the six years between 1964 and 1969 increased from 618 in 1964 fairly steadily to 948 in 1968, and was again 948 in 1969. The number set down from January 1 to June 29, 1969, was 467, and in the corresponding period this year it was 473. I am sorry to say the intervals between setting down cases and the actual hearing was about three months in April, 1966, but increased last year to eight months. It has recently been reduced to about five months, but, though the position has improved, in the opinion, I think, of all those concerned with the matter it is still unduly long.
It has been possible for the Court of Appeal to deal with its civil business and even slightly to improve the position only by sitting in four Divisions hearing civil 860 appeals. However, it has always been necessary for two, and it is frequently necessary for three, Lords Justices to give their time to the criminal business of the Court of Appeal, and the Master of the Rolls has been able to keep his four Divisions sitting continuously for civil appeals only by using one Law Lord, when one was available, or, when one was not, a retired Lord Justice. I fear it would be unsafe to assume that it will be possible to continue to manage the business of the Court of Appeal in this makeshift way. It may well be necessary to have another Lord Justice before long. It is accordingly desirable to increase the maximum number of Lords Justices by one; that is to say, from 13 Lords Justices to 14.
I now come to the number of puisne Judges of the High Court. The large increase in High Court business has entailed a substantial increase in the number of sittings of the Judges and commissioners of assize. In 1969 they spent 12.8 per cent. more time than in 1968 trying prisoners on circuit. The indications are that criminal trials will occupy even more of the Judges' time in the next two years, and they will have to give at least as much time to the trial of civil actions in London and on circuit. There are now 66 puisne Judges of the High Court and the authorised maximum is 70. In view of the present growth in the volume of criminal business it may well be necessary to increase their number between now and the end of 1971 by as many as five Judges. For this purpose it would be necessary to have an authorised maximum of 71, but so as to allow a reasonable margin for contingencies and for the needs of 1972 as well it would be desirable to increase the maximum, as proposed in the present Draft Order, from 70 to 75.
I come now to the county court judges. As I think I told the House a moment ago, during the last year it has been necessary to increase the number of county court judges to the statutory maximum, which is 105. In spite of this increase, it was necessary on about 1,000 occasions in 1969 to arrange for members of the Bar and for retired judges to sit as deputies to relieve the congestion in the courts. It is undesirable to have to depend to this extent on the appointment of deputies, and more judges are urgently needed to avoid using deputies so often. 861 In 1969 the increase in the sittings of the judges and their deputies as compared with those in 1968 was about 6.5 per cent. The annual increase in the previous five years had been about 5 per cent. The divorce business accounted for most of the increase in the judges' work last year, but there was also an increase in ordinary county court business. It is to be expected that both types of business will require more judicial time in 1971 and 1972 and the appointment of more judges is thus unavoidable. Many of the county court judges also sit as deputy chairmen of the Greater London Sessions and as commissioners of the Crown Courts of Liverpool and Manchester. This work now in effect occupies the time of twelve judges but it can be expected during the next two years to require as many as fourteen. The effect on the judges' work of recently increasing the jurisdiction of the county courts is expected to be more than offset by the relief which they will derive as a result of increasing the registrars' jurisdiction.
The net effect of these steps is likely to result in a saving of some judicial time. The abolition of the judgment summons procedure, when attachment of earnings for civil debt is introduced under Part II of the Administration of Justice Act 1970, will give the county court judges some further significant relief. On the other hand, some additional work will fall on them when the Divorce Reform Act 1969 and the Matrimonial Proceedings and Property Act 1970 come into force in the early part of next year. Although these changes in jurisdiction can be expected to lead to some saving of the judges' time, it will shortly be necessary, as the result of the increasing load on the courts referred to in my previous observations, to strengthen the County Court Bench; and further increases in the number of judges are likely to be needed in 1971, and again in 1972, especially if delays in trial are to be avoided. This entails an increase in the statutory maximum. In the circumstances, I hope that the House will agree that it is appropriate to increase the statutory maximum from the present figure of 105 to 125, as proposed in the Order.
The net result is thus to increase the statutory number of Lords Justices of Appeal from 13 to 14, of puisne Judges 862 of the High Court from 70 to 75, and of county court judges from 105 to 125, the actual appointments being made, of course when the need for them arises. My Lords, I beg to move.
§ Moved, That the Draft Maximum Number of Judges; Order 1970, laid before the House on July 9, 1970, be approved.—(The Lord Chancellor.)
§ 4.32 p.m.
§ LORD GARDINER
My Lords, we on these Benches hope that this House will approve this Order, though there are one or two points that we should like to raise. Until fairly recently, if the Lord Chancellor thought there ought to be additional Judges it was necessary to pass an Act of Parliament to increase the statutory maximum. One situation in which no Lord Chancellor liked to find himself was that in which he was of the opinion that the Judiciary ought to be increased but that it could not be done without an Act of Parliament and there was no Parliamentary time available. However, that difficulty has been removed now that, much more conveniently, the statutory maxima can be changed by a Statutory Order of this kind.
I have no doubt that the noble and learned Lord on the Woolsack is quite right to seek an increase of one in the statutory maxima in the number of Lords Justices. For while it is true that there has been no increase in the number of appeals in 1969 as compared with 1968, I know that it is only by the unremitting attention of the noble and learned Lord the Master of the Rolls that he has been able to keep up to date, and only then by making use of the services of noble and learned Lords of Appeal, when they were free, and of retired Lords Justices to a degree which, if I may say so, was perhaps not really desirable. Therefore, I think there can be no doubt that it is right to increase the maximum number of Lords Justices by one.
With regard to the High Court Judges, the increase proposed is of course fairly large, the present maximum number being 70, and the number in post 66. There is a current margin of four, and it is now proposed that the maximum should be increased to 75. I hope that this does not mean that we shall have too many additional Judges in the near 863 future, and I am a little surprised at the statement that it may be necessary to appoint another five. After all, this is an increase of something like 8½ per cent. of the whole of the High Court Bench within a period of 18 months.
As the noble and learned Lord on the Woolsack knows, what tends to happen is that the noble and learned Lord the Lord Chief Justice suddenly says, "Next month there is a four-week-long fraud case in the West country. There is a three or four week affray case which has been set down at Kingston. There is another long case at Liverpool. As my present Judges will be occupied with the rest of the work, I really want three commissioners appointed. "This may be simply for this one month, and some use of commissioners is essential. Obviously, there should not be too great a use of commissioners. But the sort of problem to which I have referred is not met by saying, "Well, let us have one more Judge". And if you say, "Well, let us have three more Judges", because it has been shown that at some time during the year there may be for one month a need for three more, you may then have an unnecessary number. Perhaps the noble and learned Lord on the Woolsack can explain to us why he thinks that there may be a case for as many as an additional five High Court Judges within the next 18 months.
So far as county court judges are concerned, some increase in the present maximum is obviously essential. The maximum number is 105, and there are 105 in post, so it is certainly necessary that this number should be increased. I would readily have agreed that it should be increased from 105 to, say, 110 or 115, or perhaps 120; but an increase to 125 seems a very large increase indeed. I think that no one can say to what extent an increase will or will not be necessary. This is particularly difficult in the case of county court judges, because there are factors which should result in additional work being placed on the county court judges and there are other factors which should result in less work being placed on them.
The increase in jurisdiction, though relatively modest, will increase their work; and there may well be some further increase when the Divorce Reform Act 864 comes into force on January 1 of next year. On the other hand, they are losing their judgment summons work. This work occupied 8 per cent. of the whole of the work of all the county court judges. That has now gone. Moreover, the jurisdiction of the registrars is being increased: they will try cases which otherwise the judges would have tried. So, although the work will increase—and we shall probably need some extra county court judges—it is difficult to say, on balance, how many will be needed in the next 12 months. But the number proposed seems large.
I do not know what are the proposals of the noble and learned Lord on the Woolsack with regard to any further increase in the jurisdiction of the county courts. As he knows, it has been recommended that there should be a still further increase. Perhaps he can tell us what his intentions are in that regard. Can he also help us by saying whether there is any difficulty in the recommended further increase of the jurisdiction of the registrars arising from the fact, if it be the fact, that it is not easy to get good registrars, who of course are all solicitors of experience, at the rates which the Treasury are at present prepared to sanction? It would be unfortunate if Parliament, intending that a larger proportion of the smaller cases should be triable by registrars, were to be thwarted simply because the powers-that-be in the Treasury were not prepared to sanction a rate of remuneration at which alone suitable candidates can be found?
I hope, therefore, that the House will approve the Order. What troubles me most is the suggestion that so large an increase in so short a time may be required on the High Court Bench, always bearing in mind that, whereas during all my time at the Bar (as I hope the noble and learned Lord on the Woolsack would agree) the standard of the Bench, both of the High Court and of the county court, has visibly risen all the time, there is a limit beyond which the Bench, particularly the High Court Bench, cannot be increased in numbers without their average quality being affected.
§ 4.40 p.m.
§ THE LORD CHANCELLOR
My Lords, I think I have the right to reply without the leave of the House. I am 865 extremely grateful to the noble and learned Lord for the general support that he has given to this Motion. I would agree with him that the Order in Council procedure, which derives from fairly recent legislation, is far more convenient than the need to legislate for the maximum number of Judges. I am glad also that I had his wholehearted support over the number of Lords Justices of Appeal. The case there is urgent and clearly made out based upon the actual workload at the moment because, as the noble and learned Lord agreed, the work of the Court of Appeal has been falling into arrears and is maintained precariously by the use of drafts from the judicial talent of this House and also from retired Lords Justices. That is manifestly undesirable, and I am glad that I have the support of the noble and learned Lord about this.
When you come to the High Court and the county court you are, of course, dealing with a more questionable figure which is not demonstrable in plain terms, but I hope the House will, on the whole, agree that, as I am dealing here with maxima and not with actual appointments, I should be given (as previous Lord Chancellors have under the existing legislation until we more or less came up against the buffers) a certain amount of elbow room in the appointment of Judges. I should like to say, in relation to the last remarks of the noble and learned Lord, that I recognise as much as he possible can with his greater experience the need for keeping up the standard of the High Court Judges. I do not think there is anything more important in the whole administration of justice than that this standard should not fall down. I also recognise something which he did not mention but which I know he would equally have at heart, the necessity for keeping up the highest standard among the leaders of the Bar, because if you recruit all your best leaders on to the Bench, litigants will suffer from inadequate presentation of difficult cases. Since I have been in my present position I have been really amazed and delighted to find how high the standard of the Bar really is. I had not really realised it until I saw the talent that there was available. Bearing those limitations in mind, I think I can promise the House, whatever else 866 may be true, that no appointments are likely to be made (except by the human fallibility of the Lord Chancellor in the selection of personnel) which would either reduce the quality of the High Court Bench or of the remaining members of the Bar available to take difficult work. Any mistakes which are made will not be due to the shortage of talent; they will be due to the shortcomings of the Lord Chancellor.
As regards the actual need, it is of course the fact that five is a fairly large number. I think, however, that two facts should be borne in mind: first, that there has been no increase since the Statute, so far as I know, in the High Court Bench, although there has been an increase in the County Court Bench; and secondly, some increase is admittedly necessary within the next few months in order to enable me to deal with foreseeable difficulties. It is largely a question of judgment as to how much elbow room one is going to ask for over and above that amount. It will be remembered that one of our great tasks in this Session of Parliament when we return after the Recess will be an attempt to legislate and implement the Beeching reforms. It was part of the policy of those reforms that perhaps fewer commissioners should be used and more full-time Judges. That again is a question of judgment. I fully agree with the noble and learned Lord, and he is obviously right, that commissioners serve a very useful purpose in dealing with what one might call peak loads at particular points. They also serve a particularly useful purpose in enabling Lord Chancellors, who may have to appoint judges, to see how particular advocates shape on the Bench. I would not in the least doubt the value of this means of dealing with the work load, but using the best judgment I can and telling the House, as I do, that I certainly shall not be coming to the authorities for actual appointments unless I feel the situation demands it, I would ask the House to pass this Order as regards the puisne Judges. I do not think we want to take two bites at this particular cherry. As regards the county court, again I anticipate that the county court jurisdiction will be raised, and, for that matter, that of the registrars, but I am not in a position to make a statement yet.
867 The question again arises as to how far one can go on using deputies. I think the House would probably agree that to use deputies on 1,000 occasions in 12 months is really too much of what is undoubtedly a very good thing; and to rely more on judicial talent, based on salaried Judges with full-time appointments, is probably fairer both to litigants and to the Bar, who sometimes find deputising both inconvenient and onerous. On the whole, I think that these are the best figures we can arrive at. To some extent, of course, the increase in business is problematical. In my judgment, based upon looking at the total High Court work on crime and civil cases over the last few years—it has been rising fairly steadily in both departments and in the county court—the graph will continue to go up, though I am the first to admit that extrapolation is the most dangerous of all scientific processes. But I think it will go up, and I think it will go up in the new Family Division of the High Court as a result of the divorce reforms—probably quite sharply for a time, and then level out. Again, to some extent the increase is speculation, and we may prove to be wrong—in many ways I hope we are—but I think it is reasonable to ask the House, as a matter of good housekeeping, to give me this extra facility should I be able to obtain the proper authority for the actual appointments. In these circumstances, I hope the House will grant me the elbow room for which I have asked.
§ On Question, Motion agreed to.