Third Standing Committee on Delegated Legislation
Tuesday 29 October 2002
[Mr. Roger Gale in the Chair]
Draft Maximum Number of Judges
The Parliamentary Secretary, Lord Chancellor's Department (Yvette Cooper): I beg to move,
That the Committee has considered the draft Maximum Number of Judges Order 2002.
The order is made under section 2(4) of the Supreme Court Act 1981. It raises the statutory ceiling for Lords Justices from 35 to 37. The ceiling was last increased from 32 to 35 by the Maximum Number of Judges Order 1996. The purpose of raising the ceiling is to provide some flexibility to respond to changing work load patterns and increased pressures.
Due to changes in the sort of cases coming to the Court of Appeal since the last increase, there is a need for the Court to sit 10 or 11 courts to deal with the work load. Over the past few years, it has had to make increasing use of High Court judges sitting in the Court of Appeal and retired Court of Appeal judges to maintain the sittings. Both those practices have positive benefits, but they can have only a limited impact. There is also a case for giving the Lord Chancellor more flexibility to add up to two extra judges to the permanent complement of the Court of Appeal. That sensible move reflects current pressures and anticipates future ones.
The most notable change in the work load of the Court of Appeal following the last increase is in the complexity of the cases that are now being dealt with. The appeals require judges to spend more time in preparation and in writing judgments. There has been a marked decrease in the number of county court appeals and interlocutory appeals to the Court of Appeal, but High Court commercial appeals have more than doubled. Appeals from the Administrative Court have increased by more than 50 per cent. The change in the nature of the Court's work is also reflected in the steady increase over the past few years in the percentage of appeals where judgment is reserved.
In addition, the total number of appeals filed shows a slight decrease of approximately 3 per cent. in the past three years, but the number of appeals settled by consent—in other words, cases that will not involve a substantive court hearing—has decreased by more than 20 per cent. over the same period. The number of applications for permission to appeal shows no sign of diminishing, and continues to make significant demands on the Court's time.
Since 1996, there have also been developments in the work load of the criminal division of the Court, which, again, reflects the increased complexity. The amount of paper that the Court has considered is evidence of that. The key document in an appeal is the
Column Number: 4
judge's summing up in the trial at first instance, the average number of pages for which has increased by almost 20 per cent. in the past year alone.
The lack of judicial resources available to hear appeals against conviction has affected the Court's target deadline of eight months. This is currently containable against current estimates, but with the number of referrals from the Criminal Cases Review Commission and interlocutory appeals also on the increase, that target, which is important as part of easing delay in the system as a whole, is also coming under greater pressure.
We must also take account of the pressure of other important tasks on senior judges' time. For example, Lord Justice Auld was withdrawn from the work of the Court for 18 months over the past two years to prepare his major report on the future of the criminal justice system. In contributing to our debates and to Government's work on the criminal justice system, it is important that we can draw on such expertise in this and in so many other areas.
Court of Appeal judges also sit at the Court of Human Rights in Strasbourg and fulfil commitments to the Judicial Studies Board. Administrative duties are also required of the Heads of Division and other senior members of the court. Those are not new requirements; they are part of the picture.
Decisions about whether and when posts need to be filled are a matter for the Lord Chancellor, but it is wise in any area of work force planning to ensure that there is the flexibility to handle pressures, rather than squeezing the system and responding belatedly. The Lord Chancellor believes that increasing the capacity of the court for two further judges will provide the flexibility needed to make additional appointments if they are required.
Mr. Nick Hawkins (Surrey Heath): I welcome this opportunity to serve under your chairmanship, Mr. Gale. I do not intend to oppose the proposal, but I have a couple of questions, to which I hope that the Minister will reply.
I recognise all the factors mentioned by the Minister, such as increased work load and increased complexity. Indeed, it is fair to say that the Opposition anticipated in previous debates in Committee and the main Chamber that there would be greater pressures on the senior judiciary. We have said regularly that the Government's implementation of the Human Rights Act 1998, which was debated at some length on the Floor of the House as recently as yesterday evening, will inevitably lead to greater pressures on the higher judiciary.
What information does the Minister have about the number of cases going to the Court of Appeal that now raise human rights concerns? From my observation of the law reports and informed press comment from specialist legal commentators, it appears that the measure has led to that increase in complexity. That is entirely understandable, but we feel that it was predictable.
Column Number: 5
When this change was being made, did the Minister and the Lord Chancellor consider whether an increase from 35 to 40—a more obvious, round figure—rather than from 35 to 37 might have been more appropriate at this stage? Opposition Members are concerned that we may find ourselves back in Committee within a year or two to increase the number again, particularly if the number of commercial appeals, which the Minister mentioned had more than doubled, continues to increase at that rate, and if there continues to be an increase in administrative appeals. Perhaps it might have been wiser of the Lord Chancellor to consider a bigger increase than simply adding two judges.
I appreciate that the Minister was simply talking about providing flexibility, and I accept all her arguments about judges having to sit on European matters, to contribute to the Judicial Studies Board, and the extra pressures as a result of Court of Appeal judges such as Lord Justice Auld being withdrawn from the work of the court to write reports for the Government. All those are perfectly valid factors, as is the greater work load from the Criminal Cases Review Commission. Nevertheless, will the Minister comment on the danger that we may have to come back again in a year or two to talk about a further increase, to 40 or even more?
That said, the Opposition do not oppose the order. I look forward to the Minister's replies to my questions.
Mr. John Burnett (Torridge and West Devon): It is a pleasure to welcome you to the Chair, Mr. Gale. I have served under your chairmanship many times, not least earlier this year, when I made the odd guest appearance on the rather lengthy Finance Bill. I am sure that the hon. Member for Surrey Heath (Mr. Hawkins) will not mind if I declare that we are both lawyers. I do not practise as such, but the statement is always guaranteed to ingratiate one with any audience.
This is welcome and non-contentious legislation, but it raises a few questions. I pay tribute to the members of the Court of Appeal and our senior judiciary. They do outstanding work, not only in court but elsewhere. However, I want to say a little about value for money. These judges are eminent, distinguished and conscientious, but I ask the Minister to satisfy us that they work efficiently. In other words, are they given the back-up that they so richly deserve? Do they have the staffing levels and the information technology back-up that they deserve? Are we getting the most out of the existing pool? I should like to know something about their office and research facilities, the level of staffing to which they are entitled, and whether they get an allowance for staff and researchers, as we do as Members of Parliament. In other words, are we making the most of their undoubted talents?
We are discussing judges who must, of course, be appointed. As we are discussing the judiciary, I would like to say something uncontroversial. The main criterion for appointment is merit. People should be promoted on merit. However, ethnic minorities and
Column Number: 6
women formed a far smaller pool of people entering the legal profession 30 or 40 years ago, which is when people who are now appointed to the Court of Appeal joined the legal profession. Over the past 30 years, an increasing proportion of women and people from ethnic minorities have been entering the legal profession, and I believe that all parties represented in this Room hope that that will be reflected in judicial appointments in future years.
Last night I gave notice to the Minister—rather late, for which I apologise—that I wished to say a few words on judicial appointments and the judicial appointments commission. I referred the Minister, although I doubt that it was necessary, to the report of Sir Colin Campbell on how we pick our judges. He made some trenchant criticisms of the existing system, and identified problems of
''delay, inadequate record-keeping, insufficient understanding of the system, even among lawyers and judges.''
Although he acknowledged that many improvements had been made, there is still a lack of confidence in some important aspects of the system. I would like the Minister to address that issue. It has long been the policy of my party, and, I believe, of other parties as well, that we should have an independent judicial appointments commission. That is important.
I want to know what the Government's policies are and whether they are satisfied with the existing system of appointing judges and Queen's Counsel. When the Minister addresses that issue, perhaps she would give the Government's views on confirmatory hearings for appointments to the very senior levels of the judiciary—the Lords Justices that we are discussing today, and the Lords of Appeal in Ordinary. What are the Government's policies in that area, and, if those policies are evolving, in what direction?
Finally, I welcome the improved explanatory notes. In the past, I have often complained about the deficiencies and sketchiness of explanatory memoranda.
I also add a comment to what was said by the hon. Member for Surrey Heath. We are possibly in an economic downturn, and, if so, that presages more litigation.