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Lord Graham of Edmonton: My Lords, first, I apologise to the House and to the noble and learned Lord for the inability of my noble friend Lord Irvine of Lairg to be present tonight. He has been unexpectedly delayed. He has taken a deep interest in the matter and has raised it on more than one occasion. No animosity has been involved and I know that when he reads what was said by the noble and learned Lord he will be most pleased.

My noble friend will understand the case. I can listen to it and try to grapple with its intricacies. However, I am certain that the noble and learned Lord, Lord Ackner, will add to the good reception that I have given to the order. He too well understands the situation.

I have learnt from a number of quarters and sources that the noble and learned Lord the Lord Chancellor has met an acute need. That need could be eased only in this manner. I am well aware of protocol and of having to be careful before going overboard. I believe

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that the balance and the timing are right. On behalf of my noble friend Lord Irvine and Members on these Benches, I give the order a warm reception.

Lord Meston: My Lords, I too thank the noble and learned Lord and wish to ask only one question. Is he prepared to lift the veil on the possible categories of appeal that are being considered as candidates for which leave might now be required?

Lord Ackner: My Lords, I too welcome the proposed order, which increases the maximum number of Lords in Appeal in Ordinary to 12 and the Lord Justices in the Court of Appeal to 32. I raise only three points on which I should be grateful for my noble and learned friend's comments. The first relates to the adequacy of the increased number of judges in the Court of Appeal. My noble and learned friend referred to the Court of Appeal (Civil Division) Review for 1993-94, copies of which were circulated to all Lords of Appeal past and present. It makes depressing reading. My first point relates to whether three is an adequate number to cope with the present situation.

In the conclusion, the Master of the Rolls states:


    "Over the past three years the figures show a consistent and disturbing trend: a high level of appeals set down; a steady and significant increase in the number of applications set down; and a sharp increase in the backlog of unheard appeals and applications. The trend is disturbing because the delay in hearing appeals is already too long, and is perhaps at the upper limit of what is acceptable. If these trends continue and nothing is done, the delay will be altogether unacceptable and may be seen as a denial of justice".

The Master of the Rolls pays tribute, as has my noble and learned friend the Lord Chancellor, to the considerable assistance of retired Lords Justices in dealing with the situation. In the words of the Master of the Rolls, they have given "valuable service". In his report, the Master of the Rolls identifies those retired Lords Justices. They are nine in number. If and when—and I suppose that it is when—the Judicial Pensions and Retirement Act is brought into force, of those nine, four will be immediately disqualified because they are over the age of 75. Of the remaining five, four are approaching 75; some are a year away, some two or three years, but all are approaching 75.

I appreciate that in due course there will be those who will retire from the Court of Appeal and who will, subject to age, make their services available. However, in view of the disturbing observations made by the Master of the Rolls in his report, and in view of the impact of the Act, when it is brought into force, upon the availability of retired Lords Justices to continue to provide such valuable assistance, I wonder whether three is enough to deal with the present depressing situation.

Secondly, my noble and learned friend referred to the fact that, in addition to increasing the number of judges, obviously thought will be given to reducing the time spent on oral argument. The Master of the Rolls says in his conclusions:


    "It appears to be inescapable that in this country, as in other common law jurisdictions, steps will have to be taken to curtail the time allowed for oral argument, with greater reliance on

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    written submissions. The saving of time in court will of course be off-set by the need to devote more time to perusal of written materials out of court, but experience elsewhere indicates a saving of time and an increased rate of disposal of business overall".

now turn to the part of the conclusions that I wish to stress:


    "In other common law jurisdictions increased reliance on written materials has demonstrated a need for the judges to receive professional legal assistance, usually obtained (at relatively modest expense) from the ablest young law graduates; this also may prove a desirable, if not a necessary, innovation here".

s my noble and learned friend knows, when I was sitting as a Law Lord my opposite number in the Supreme Court of the United States had three assistants to help him. Indeed, each member of the Supreme Court had three such assistants. I believe that the same applies in Canada and Australia. I do not know whether my noble and learned friend can confirm that serious consideration is now being given to the question of providing legal assistants, especially if we are to move more towards the restriction on oral argument.

My third and last point relates to another disturbing feature of the report. On page 9, there is a reference to "Figure 7", which shows,


    "the total number of applications set down in the year under review and, in the lower line, the number of applications made by litigants representing themselves".

he report then continues:


    "It will be seen that in 1989-90 scarcely more than one applicant in ten acted in person, whereas in the past year the proportion of such applicants has approached one third of the total".

The Master of the Rolls observes:


    "In most instances litigants representing themselves are inevitably unfamiliar with legal procedures and lack the expertise needed to prepare the case for hearing by the Court, to give a clear account of the relevant narrative, to identify the legal issues for decision and to present argument to the Court".

The Master of the Rolls concludes:


    "While the staff of the Court do their best to give guidance on procedure, and helpful explanatory leaflets have been prepared, the conduct of cases by personal litigants greatly increases the burden on the lawyers and administrative staff who work in the Civil Appeals Office and on the members of the Court in seeking to elicit the relevant facts and identify the relevant issues".

t must be the case that this, to quite an extent, is the product of the very savage cuts in legal aid. I wonder whether my noble and learned friend will bear that in mind when considering to what extent those cuts can be ameliorated.

9 p.m.

The Lord Chancellor: My Lords, I am grateful for the support from all speakers for the Motion that I have moved. It remains for me to seek to deal with the matters raised. The noble Lord, Lord Meston, raised the question of whether I can give any information about the classes of case being considered as regards the application of a filter. As is known, we have already dealt with one tranche of that.

So far as concerns the second tranche, I am considering it at present with the Administrative Committee of Lords Justices. Indeed, I mentioned that

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my officials have had a meeting with the committee. Whenever we reach a view about what classes of case are appropriate, I shall put out a consultation document which will set them out in detail and ask for views upon them. I shall do so before operating the powers given under the statute to modify the classes of case which require a filter. At the present stage of the discussion, it would be premature to reach any conclusion. In fact, I have not reached any conclusion myself on the matter, as I am still in discussion with the Lords Justices.

My noble and learned friend Lord Ackner raised three questions. I take the view that, so far as concerns the present situation, the increase by three judges is reasonable. We shall of course have to keep the situation in the Court of Appeal under review and the effect of any other action that the court may think it proper to take in relation to the matters with which the Master of the Rolls dealt. The Master of the Rolls made it clear that, in his view, repeated extensions of the size of the court would not be a suitable solution to all the problems experienced by the court. I believe it right at present that we should ask for three judges and then see how matters develop.

Secondly, my noble and learned friend pointed out that the Master of the Rolls raised the question in his report of curtailing oral argument. I have already made arrangements for legally qualified staff to be in the office of the civil division of the Court of Appeal. That was an innovation of a year or two back. Obviously, the precise number of such staff at any time will also be a matter which we shall keep under review.

My noble and learned friend referred to his opposite number in the Supreme Court of the United States when he was a Lord of Appeal in Ordinary, who had three assistants. It is fair to say that the number of cases disposed of by the Supreme Court in the US in a year is rather more, although the method of working is different. I certainly intend to keep under review the legally qualified members of the staff of the civil division in the Court of Appeal in the light of developments that the court may decide upon in relation to the issue of curtailing oral argument.

In so far as the third point is concerned, the Master of the Rolls has pointed to an increase in the proportion of those who represent themselves, as between 1989 and the present day. I do not think that that is attributable to any substantial extent to the changes in eligibility for legal aid which were made last year. I think that this is a tendency which has a number of causes. I certainly intend to keep very closely under review the question of whether or not the legal aid changes have affected this matter. However, one of the complaints that I have heard from the previous holder of the office of Master of the Rolls was that he found from time to time that legal aid was granted too readily for appeals that were not with merit in the Court of Appeal and he wondered about steps to deal with that. It may well be that steps to deal with that have had an effect on the number of people who represent themselves in this manner.

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However, these are all matters that I would wish to keep under review but, in the meantime, the order, the draft of which is before your Lordships, is, I think, agreed on all sides to be an important step in the right direction. I renew my Motion.

On Question, Motion agreed to.


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