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Maximum Number of Judges Order 1994

8.44 p.m.

The Lord Chancellor (Lord Mackay of Clashfern) rose to move, That the draft order laid before the House on 16th November be approved [1st Report from the Joint Committee].

The noble and learned Lord said: My Lords, the draft order is made under Section 1(1) (a) of the Administration of Justice Act 1968 and Section 2(1) of the Supreme Court Act 1981. It relates both to Lords of Appeal in Ordinary and Lords Justices. The Administration of Justice Act 1968 set the maximum number of Lords of Appeal in Ordinary at 11. The order now proposed will increase that number to 12. The statutory ceiling for Lords Justices in England and Wales was increased from 28 to 29 by the Maximum Number of Judges Order 1993. This order will further increase that number to 32.

I shall speak first of the proposed increase in the number of Lords of Appeal in Ordinary. Lords of Appeal in Ordinary are those Members of your Lordships' House appointed to hear and determine appeals. They also sit regularly in the Judicial Committee of the Privy Council.

In addition to their judicial work, Lords of Appeal in Ordinary are increasingly in demand for important public duties. Your Lordships will know, for example, that my noble and learned friend Lord Woolf is heavily engaged in the committee considering access to justice, and my noble and learned friend Lord Nolan has recently been appointed chairman of the Committee on Standards in Public LIfe. That is likely to occupy him fully for some time. Moreover, the Law Lords also play an important role in maintaining international judicial links both with other common law jurisdictions, particularly the Commonwealth and the United States, and with countries which have different legal traditions, especially our partners in the European Union. Those contacts bring considerable mutual benefit to us and the others concerned, and

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we are finding that an increasing number of other countries wish to learn from the British experience. I regard that work as an essential part of the duties of the Lords of Appeal, although it means that from time to time individual Lords of Appeal are not available to sit.

At the same time, the judicial business of your Lordships' House and the Judicial Committee of the Privy Council shows no sign of abating. Indeed, petitions for leave to appeal to the House of Lords this year have already significantly exceeded the total of petitions presented last year and the indications are that the number of appeals presented will show a marked increase over the level of recent years. Moreover, perhaps surprisingly, the number of appeals to the Judicial Committee of the Privy Council remains buoyant.

There are at present 10 Lords of Appeal in Ordinary. In addition, the Lord Chancellor and Peers who have held high judicial office, often retired Lords of Appeal in Ordinary, may also sit judicially in your Lordships' House, and in the Judicial Committee of the Privy Council. Former Lords Justices and senior overseas judges also sit from time to time in the Judicial Committee of the Privy Council. Because of the commitments of the Lords of Appeal I have already mentioned, and for other reasons such as illness, it is often necessary to rely on retired Lords of Appeal to ensure that the judicial business proceeds with due despatch. I should like to express my gratitude to all those who, although no longer holding full-time judicial office, have sat to assist in the discharge of that business.

Your Lordships will also be aware of the Judicial Pensions and Retirement Act 1993 which is expected to come into force in the course of 1995. That Act will introduce a compulsory retirement age of 70 for all new judges first appointed once the Act is in force. It will also prevent any retired judge, including retired Lords of Appeal in Ordinary, from sitting beyond the age of 75, except for the purposes of completion of proceedings. That will in practical terms have the effect of limiting the number of retired Lords of Appeal and other judges who would then be able to sit on judicial business in this House or in the Judicial Committee of the Privy Council, or, as I shall be describing later, in the Court of Appeal.

The Government are concerned to provide the necessary flexibility to ensure that such senior and important courts continue to work effectively as well as to allow, where appropriate, Lords of Appeal in Ordinary to be available to undertake other duties in the public interest. Accordingly, we propose that two further Lords of Appeal in Ordinary be appointed, bringing the total number up to 12.

As I have said, the Administration of Justice Act 1968 at present provides for a maximum of 11 Lords of Appeal in Ordinary. Arrangements for the appointment of an eleventh Lord of Appeal are already in hand. If approved, the order would permit a twelfth appointment to be made.

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I turn now to the Court of Appeal. The court is served by the Lord Chief Justice, the Master of the Rolls and the Lords Justices of Appeal. The President of the Family Division and the Vice-Chancellor also sit there from time to time. The Lords Justices form the main judicial strength of the court, although High Court judges sit with them to hear criminal appeals and other cases. Under the Criminal Justice and Public Order Act 1994 there is also provision for circuit judges to sit in the Court of Appeal in certain circumstances. I hope to be able to bring that provision into effect in January 1995.

Since March 1993 there have been 29 Lords Justices in the Court of Appeal. The purpose of the draft order is to further increase that number by three to 32.

The principal reason for seeking an increase is the growing backlog of appeals and lengthening waiting times in both the criminal and civil divisions of the Court of Appeal. In order to alleviate problems in the criminal division an additional court has been sitting since January 1993 and a second additional court since April 1994. I am pleased to inform the House that, for the first time in a number of years, there has been an overall decrease in the length of time a defendant has to wait to have his appeal heard. The number of outstanding appeals has also been reduced over the last two years by over 900 cases to 2,644.

The overall aim is to reduce waiting times to six months for conviction appeals and to three months for sentence appeals. Despite the commendable progress already made, it may well be another year before the number of courts sitting in that division can return to four without disappointing consequences.

Such progress in the criminal division has been to some extent at the cost of the civil division as additional Lords Justices hearing criminal appeals reduces the number available to hear civil cases. It is, however, inevitable that criminal cases should take priority over other cases given that the liberty of the subject is often at stake.

In his review of the legal year, the Master of the Rolls observed that the difficulties in the civil division were unlikely to be overcome by the repeated enlargement of the court. Other measures have already been taken to stem the rise of unheard appeals in the civil division; for example, retired judiciary regularly augment the numbers of Lords Justices sitting in the Court of Appeal. However, as I explained, the Judicial Pensions and Retirement Act will apply equally to judges who sit in the Court of Appeal as to those who sit in the House of Lords or the Judicial Committee of the Privy Council and there will be a similar limitation preventing any retired judges aged 75 or over being able to hear appeals.

Furthermore, in an effort to prevent meritless appeals reaching a full appeal hearing and thus taking up the time of three Lords Justices, the requirement for obtaining leave to appeal was extended in October 1993 to a number of new classes of case. My officials are currently working together with the Administrative Committee of Lords Justices to identify further categories of case that would prove responsive to a

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further extension of the leave filter. The categories have not yet been finalised, but any firm proposals will be put out to consultation in the usual way before implementation. Other possible methods to reduce waiting times are also being considered, including time limits for oral arguments and the increased use of written submissions.

Such work will inevitably take time and the pressures on the civil division are already acute. Across all the categories of appeals the average delay is around nine months. However, the average figure does not give the full picture. Priority cases, particularly those involving children, can be heard within three months, but other non-priority cases might have to wait up to 22 months. Such a level of delay causes difficulties as parties seek to have their cases moved into priority categories, and thereby expedited, if there is a long wait before their appeal can be heard. It follows that the more expedited cases there are the longer the delay for those appeals which are not in the priority category. According to long-term trends, the number of appeals set down is forecast to rise by around 1.5 per cent. each year. If the number of judges is not increased the backlog as we move into the next century will be approaching 3,000 cases, which equates to delays of around two years. Such delays are clearly unacceptable. Assuming that nothing else were done, the appointment of three additional Lords Justices would hold the backlog to around one year.

After careful consideration of the current and forecast workload of the Court of Appeal, I have concluded that three additional appointments are necessary at this time and will assist in the more efficient dispatch of business of the courts and that the House should further discharge its responsibility by approving the draft order. I commend the order to the House. I beg to move.

Moved, That the draft order laid before the House on 16th November be approved [1st Report from the Joint Committee].—(The Lord Chancellor.)

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