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Session 2002 - 03
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Delegated Legislation Committee Debates

Draft Maximum Number of Judges Order 2003

Second Standing Committee on Delegated Legislation

Thursday 6 March 2003

[Mr. Bill Olner in the Chair]

Draft Maximum Number of Judges Order 2003

8.55 am

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 2003.

    It is a pleasure to open the debate, which I hope will be short and straightforward.

The order is made under section 4(4) of the Supreme Court Act 1981, and raises the statutory ceiling for High Court judges from 106 to 108. That ceiling was last increased from 98 to 106 by the Maximum Number of Judges Order 1999 to meet the anticipated increases in work load following the implementation of the Human Rights Act 1998.

I stress that the increase in the number of judges is being made to increase flexibility, not to introduce new judges into post. The combined number of days on which High Court and deputy High Court judges sat increased from 17,033 in 1998–99 to 18,056 in 2002–03. Those figures are not entirely comparable because of the way in which figures were estimated in previous years, but they broadly show the increase in sitting days. In 1998 in the Crown court, High Court judges sat 3,250 days; in 2001, they sat 3,486 days.

The Lord Chancellor is not yet convinced that we will need another two High Court judges, and considerable work is being done in the Court Service and with the judiciary to try to model future work load requirements and the work patterns of the judiciary.

The High Court is currently at its full complement.

Mr. Dominic Grieve (Beaconsfield): I refer to the hon. Lady's comments about sitting days. Do they include the sitting days of deputies?

Yvette Cooper: Yes. I thought that I had made it clear that the figures that I gave include High Court and deputy High Court judges.

This debate is similar to the one that we had recently on Appeal Court judges. We discussed the need to increase flexibility when appointing Appeal Court judges and to increase their number from 35 to 37 on the basis that cases coming to the Appeal Court appeared to be more complex and were putting pressure on the system, and that the Lord Chancellor wanted the flexibility of extra headroom. Since that order was passed, the Lord Chancellor has appointed another Appeal Court judge, Dame Janet Smith, who is still completing the Shipman inquiry and so is not in post. The other post has not been filled. It is also sensible to have flexibility when appointing High Court judges so that the work pressures can be adequately dealt with. A full analysis of the likely work load will be completed over the next few years.

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High Court judges are often involved in high profile inquiries, and share or participate in tribunals, such as the employment appeals tribunal and parole boards. The nature of the work can be difficult to predict from period to period. It is therefore useful to have the flexibility to make those appointments. It can take up to five months to go through every stage of the process of passing an order such as this and appointing additional High Court judges. That is the reason for passing the order at this stage. That will allow us to move more rapidly should a need become clear once the work is completed.

9 am

Mr. Grieve: The Minister will be reassured to know that I will not vote against the order and I do not intend to take up much time on it. Clearly, if two extra High Court judges are or may be needed to deal with the work load, it is desirable to make provision for them, even as a contingency, although I would be amazed if their services were not required. That said, the order highlights a disturbing trend, and although it may be inevitable, it should not be allowed to pass without comment.

As was made clear by the helpful explanatory memorandum—I saw it only this morning, but it told me what I already knew—the purpose of the appointments results from the greater volume of work in the Administrative Court. When I became a barrister back in 1981, the Administrative Court, or the old Crown Office list, was an appendage to the main work that was carried out in the courts. It was a place where there was litigation between citizen, local authority and state on administrative law matters, but it played a small role in the dispensation of justice. However, in the intervening period, it has almost completely swallowed up the work load of High Court judges.

An ordinary citizen wishing to litigate on a personal injury matter that may be worth a substantial sum of money is most unlikely ever to see the front or back of a High Court judge. The case will usually be tried in an out-of-the-way county court. We are gradually ending up with a two-tier justice system in terms of both competence and application, which I find very troubling. The Administrative Court is swallowing up all the resources.

As the Minister pointed out, that is the reason for the appointment of two further High Court judges. Admittedly, there is also a Crown court volume of work that falls on High Court judges. In addition, in the context of the chancery division, there is still a traditional role for High Court judges that has all but disappeared in the Queen's bench division. There is also the family division work, which is confined essentially to the most complex cases.

As I said, this trend may be inevitable, but we should not let it pass without comment, because one worries about where it is going to end. The role and expertise of the High Court judge now seem to be focused entirely on the issues to which I have referred, which I am not sure is entirely desirable for the administration of justice. I also worry that the increasing volume of asylum casework or human

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rights work will continue to be relentless, and that the possibility of redeploying High Court judges to play a very important role in strengthening the operation of our common law in inter partes litigation is being lost.

I very much hope that the time will come when we can have a more balanced structure, under which High Court judges may be able to return to their more traditional roles. We need that for the rapid administration of justice and the avoidance of bad decision making. As the Minister will be aware, decisions taken by judges in the county court do not constitute precedent; decisions taken by High Court judges may do so. The distinction is important and we are in danger of losing sight of it.

With those remarks, I shall not stand in the way of this order, which is clearly necessary. However, it underlines my continuing concern—it goes back a long way, pre-dating the arrival of the present Government—about this trend. It would be wonderful if it could be reversed.

9.4 am

Mr. David Heath (Somerton and Frome): We shall not oppose the order. I hope that our proceedings will be brief.

The modest proposed increase is based on the explanatory memorandum in respect of asylum casework. In introducing the order, the Minister made no mention of that particular sector of work, which was rather surprising. I am the first to admit that we must provide adequate resources for that sector. It is tragic when a backlog is allowed to build up and decisions are delayed simply through lack of resources, thereby denying justice. That is why it is desperately important that the legal process, as well as the administrative process, does not face in-built delays that can prevent proper assessment and disposal of asylum cases at the earliest opportunity. If additional judges are required in the High Court, I am prepared to accept it—with the proviso that adding judges should not be used as a substitute for improving the administrative and procedural means of pursuing cases at the earliest opportunity and in good order. I am afraid that some concerns remain in that respect.

My other brief point relates to the process of appointment, which my hon. Friend the Member for Torridge and West Devon (Mr. Burnett) has discussed on previous occasions. We on the Liberal Democrat Benches remain worried that the appointment of judges has not taken account of various concerns expressed on a wide front about the diversity of appointments and the openness and transparency of the process. I have examined the annual report on judicial appointments carefully and note that the Lord Chancellor says in the foreword that his officials continue to travel the length and breadth of the country, which is good news but demystifies the process. However, Sir Colin Campbell, the Commissioner for Judicial Appointments, raised significant anxieties and it is about time that they were properly addressed. I am not convinced that they have been and I hope that the Minister will confirm that further progress has been made. We must maintain the pressure on all fronts to ensure that the

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bench, while retaining impeccable judicial credentials, becomes as representative as possible of the wider community and that it does not deter good candidates from standing for appointment simply on account of inadequacies in the process. That does not serve the interests of justice well.

Finally, I am not convinced that a Cabinet Minister should have responsibility for the appointment of the judiciary. The Lord Chancellor's position, as I have said on many occasions and in many different contexts, is increasingly untenable and it is time that we dealt with the problem once and for all.

9.9 am

Mr. John Burnett (Torridge and West Devon): As the Minister pointed out, this is similar ground to that which we covered when, on 29 October 2002, we discussed the increase in the number of Court of Appeal judges.

I am grateful to my hon. Friend the Member for Somerton and Frome (Mr. Heath) for picking up the legal affairs mantle on my behalf. Nevertheless, as he suggested, my interest in such matters has not waned. I want to place on the record my appreciation, and the appreciation of the entire House, of the high quality of our higher judiciary. They are some of the most able and conscientious people in the land, and do an excellent job on our behalf.

As I said on 29 October, we must not lose sight of the concept of value for money. We must ensure that our judges work efficiently and that they get the back-up that they deserve and need. I raised the issue of staffing levels and information technology. In the Minister's reply, she agreed that there was an issue about information technology and the judiciary. She said:

    ''The judiciary, with all parts of the criminal justice system, is in need of new IT infrastructure and equipment and there is an ongoing programme to introduce it, but it will take some time because many parts of the criminal justice system are in need of new modern technology.''—[Official Report, Third Standing Committee on Delegated Legislation, 29 October 2002; c. 7.]

I hope that the Minister will be able to give us further news about the progress on those matters. I hope that she will also be able to assure us that we are getting the most out of those extremely able people, and that they are getting the staffing, the support, and the information technology that they require.

I note that at the end of the explanatory notes there is a comment about the financial effects. I do not want to be pedantic, but presumably the measure has a cost. Could the Minister give us some idea of what the pay, pensions and support costs will be?

In October 2002, I raised the matter of judicial appointments. My hon. Friend has covered that point. It is important that there should be a transparent system of judicial appointments and appointments of Queen's counsel. I hope that the Minister will respond to the points that Liberal Democrats have raised.

I shall also be interested to hear the Minister's response to the compelling point made by the hon. Member for Beaconsfield (Mr. Grieve) about the continued effect of the pressures of the law on the High Court judiciary. County court judgments are

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persuasive but, as the hon. Gentleman said, they are not precedent in the real sense of the word.

9.13 am

 
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