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Lord Renton: My Lords, before the noble and learned Lord sits down, will he be so good as to inform your Lordships as to the number of times in any year the council may be expected to sit, and how much this new bureaucracy would cost?
Lord Woolf: My Lords, I anticipate that the cost would be modest indeed. I anticipate that the council would probably not have to sit more than four times a year, and probably fewer times than that. The important point is that the council is a focus that can be used by those who wish from time to time to bring forward matters. It is the head for the various comparable bodies which will exist around the country if the proposals that I have made are implemented. It would be affected by needs at any specific time. In giving a figure of four times, I am choosing the maximum. The staffing would be modest indeed.
3.30 p.m.
Lord Ackner: My Lords, I am anxious to spare the blushes of my noble and learned friend the Master of
the Rolls. However, I wish to quote one piece from his speech which I think encapsulates the anxiety one has if this council is not set up. He said this:
- "When I set out on the Inquiry which resulted in my Report, I was very conscious that since 1885 there had already been over 60 Reports each urging reform of the civil justice system yet the situation on which I had to report was one which many commentators described as being in crisis. Why should this be so? It is not because of any callous disregard of their responsibilities by those in charge of the system. It is my belief part of the cause is the absence of a broadly based body which has the clear responsibility for monitoring the justice system as a whole and identifying the areas which are in need of reform".
The proposals made by my noble and learned friend for the civil justice amendments and improvements are indeed radical. They move our system from the adversarial towards the inquisitorial, which many people think is a desirable feature. However, we must bear in mind that the inquisitorial system, as we know from seeing its operation throughout Europe, is considerably more expensive than our system: there are more judges, who sit for less time in court, the better to be able to read the case papers, as a result of which their judicial throughput is far less.
One of the anxieties that I have heard constantly articulated in regard to the proposals of my noble and learned friend Lord Woolf is whether the system would be sufficiently resourced. If it is not sufficiently resourced it will fail. The extra resources required are, I believe, quite considerable. The judges who are presently destined in the majority to undertake the judicial management of cases are the lowest rungs of professional judges. I say that with no disrespect; but the fact of the matter is that the district judge, previously known as the registrar, was not involved in litigation of a very complex kind. It is common ground that he will require extensive training if he is to change his function to that of a case manager. It is bound to be the case that some will be temperamentally not suited to it. In addition, there will be the need for a larger number of such judges. There has already been discussion as to whether there should be a different source from whom the judiciary should be recruited for this job. What is overlooked is that the main thrust of the reform is to make access to justice more popular as a result of its being cheaper and quicker. If it becomes more popular, the caseload will inevitably increase.
I had experience of this some 23 years ago when I was a commercial judge. At that time a commercial judge for the year was not expected to spend more than half his time on commercial work; the rest was spent on ordinary Queen's Bench work. The system was gradually improved, with the result that six full-time commercial judges sit at any one time, with 13 designated in that capacity. The result of improving access to our civil justice procedure, as it should be improved, will inevitably be greater caseloads.
What I anticipate may occur--and this is where I suggest the council is particularly important--is that there will be resistance to providing adequate resources. After all, my noble and learned friend's proposal will
involve shifting on to the public purse some of the expense hitherto borne by the litigant himself. If this occurs, it is essential for there to be a powerful statutory body which can state firmly and publicly that the system is falling behind its reasonable expectations because of being starved of the necessary funds.To those who may say that this is all make believe and imaginative, I ask the Lord Chancellor to go back to the Maximum Number of Judges Order of 1993 which increased the number of High Court judges by 10. Before that order was achieved, strong representations had been made over a period of four years by the Lord Chief Justice and the Master of the Rolls. Those representations failed. In 1992 at a Lord Mayor's dinner given for the judges, attended by the Lord Chancellor and by myself, the noble Lord, Lord Lane, had reached such a pitch of exasperation that he went public about it at the banquet and explained the crisis situation that had been reached.
The noble Lord, Lord Mishcon--who I am delighted to see has just resumed his place--caused a Starred Question to be raised on the very subject of the lack of High Court judges and my noble and learned friend Lord Oliver was at pains to point out that there was currently an over use of deputy judges, which was an abuse of power. That got nowhere. Accordingly, the following year, when the new Lord Chief Justice, Lord Taylor, was appointed, the same complaint was again made at the Lord Mayor's annual dinner, though voiced in stronger terms. That, too, got nowhere.
There followed a wholly unusual event, when the Lord Mayor of London led a delegation to the Lord Chancellor because of the City's anxiety about the state to which the commercial list had fallen, it having been the subject matter of a detailed description of its unfortunate shortcomings by the judge then in charge of the list. A year later the 1993 Order was made. It is therefore not imaginative to think that, when one comes to press for more money to be spent on junior judges, the same resistance may well be encountered. I should therefore have thought that the Lord Chancellor would be delighted to have a body of the stature of the proposed council with the statutory duty to take the necessary action, where required, to complain if the new system falls down because of financial starvation. That would take the heat off himself and his department. It is vital that there should be in place an organisation which is capable of performing that function.
3.45 p.m.
Lord Thomas of Gresford: My Lords, on Second Reading the Lord Chancellor said:
- "Little did I quite realise how effectively [Lord Woolf] would capture the public imagination and the willingness and desire on all sides for reform of our civil justice system".--[Official Report, 5/11/96; col. 604.]
The noble and learned Lord, Lord Woolf, has since, in the Tom Sergant lecture, about which he seems a little reluctant to tell your Lordships, referred to this Bill and to the civil justice council as an instrument for maintaining the momentum of change. This is a moment when we can change a system which has run into the ground.
During the Committee stage the Lord Chancellor acknowledged that some consultative machinery would be desirable to drive forward, as he put it, the reforms of the civil justice system. He said:
- "I certainly do not wish my comments to be taken as implying that I am against a consultative forum--far from it. I wish to ensure that the most effective body possible be established: one that is not unwieldy or bureaucratic; one that has a well defined purpose and role to play and is of sufficient size to be effective--that is, sufficiently small to be effective". (Official Report, 20/11/96; col. CWH 10.)
In Committee, the noble and learned Lord, Lord Donaldson of Lymington, described his experiences of the Supreme Court Rule Committee. First, it never met. Second, although rules were suggested by individuals, the noble and learned Lord, Lord Donaldson, said that in practice they came down from the Lord Chancellor of the day and only if he were prepared to agree would those rules go through. I suggested that that was perhaps a top-down culture that had crept into the making of rules. I repeat today that, although the noble and learned Lord, Lord Woolf, has given the necessary drive and leadership, the success of the proposals in his report derives certainly from him but also from the wide consultation process that in fact took place. Since the noble and learned Lord, the Lord Chancellor, has conceded the principle of some consultative body, we are concerned with two matters: firstly, the model of that body; and, secondly, its form, whether it should be a statutory body or a body that is appointed ad hoc.
First let me talk about the model. The remit of the civil procedure rule committee is set out in Clause 2 of the Bill that is before your Lordships today. It is:
- "to make rules which are both simple and simply expressed ... [and] ... signed by at least eight members of the committee".
The "well defined purpose" of such a council is set out in the amendment proposed by the noble and learned Lord, Lord Irvine of Lairg. But the question is who monitors the alterations that are bound to take place during the bedding down process of these reforms and, once they have come into a form with which everyone agrees, who then initiates the reforms to the rules that have been proposed as experience shows them to be necessary? It should not be simply the judiciary. It should not be just the lawyers who, as the noble and learned Lord, Lord Woolf, said, resist reform by and large. It should not be the civil servants of the Lord Chancellor's Department or of a future Ministry of Justice, should that ever come to pass. All court users should be involved in monitoring the effectiveness of the Woolf reforms and in initiating any changes that may be necessary to them.
It is important that your Lordships should bear in mind that the Woolf reforms go well beyond making a single body of rules for county court and High Court.
The council is concerned with pre-litigation protocols, especially for disclosure of documents, in personal injury cases and medical negligence and housing disputes. It is concerned with the development of alternatives to courts for the resolution of disputes. That is way beyond the remit of any rule committee. It could also be concerned with identifying where practice directions are called for and for discussing their form with the judiciary. A very important part of the reforms of the noble and learned Lord, Lord Woolf, is not simply to set out the framework but to leave it to the judiciary, where it considers it necessary, and to use the procedures already in place to issue practice directions.It is not an unwieldy and bureaucratic organisation. The model envisaged by the noble and learned Lord the Lord Chancellor would seem to be of a tightly knit committee, meeting with the head of civil justice a few times a year. The idea of a small consultative committee that is appointed ad hoc no doubt derives from the principle of good committee work that a small group is more effective when it comes to taking decisions. But that is not necessarily the best model for the comprehensive overhaul of the civil justice system.
The proposals that are contained in this amendment, on the other hand, would ensure first of all that the proposed justice council would be representative and appointed not simply by the Lord Chancellor but by the various bodies that are concerned in it, such as the Law Society, the Bar Council, citizens advice bureaux and organisations of that nature. Secondly, the proposal is that it should be of sufficient size to permit the formation of sub-groups, which could deal with particular issues: a sub-group on personal injury litigation; on alternative dispute resolution; on research; on information technology; and the formation of practice directions. In the preparation of his report, the noble and learned Lord, Lord Woolf, was assisted by no fewer than 11 working groups, typically of eight to 12 people, headed sometimes by a High Court judge and on other occasions by a very experienced senior solicitor or barrister. Those working groups would be sub-groups of the council that is now proposed, taking a particular issue and discussing it in depth.
Another important function of the civil justice council would be to promote understanding of the system among the people who use it: to get rid of the mystique; to brush away the cobwebs which surround civil litigation and which make the experience of the civil courts such a nightmare for people who go to court to pursue their rights and remedies. That is the model: a civil justice council that is not simply appointed but is representative of sufficient numbers to encompass the necessary areas of work that I have suggested.
Why is there a reluctance that it should be a statutory body? In Committee, the noble and learned Lord the Lord Chancellor said that:
- "it would probably work more effectively if it were capable of being changed from time to time in the light of experience".--(Official Report, 20/11/96; col. CWH 11.)
The noble Lord, Lord Renton, referred to cost. The complaint about the present system is that it is extremely costly. When rules which might have seemed on paper to be appropriate when the rule committee set them up do not work, it becomes hugely costly in judges' time and the time of the Court of Appeal. An example which has been referred to is the automatic strike-out rule introduced into the county court rules, which to some degree has clogged up the Court of Appeal because of the number of appeals that take place.
I cannot go along with the noble and learned Lord, Lord Ackner, in his comments on district judges, though I make this point. I know many of them and have appeared in front of them. They are people who are certainly well capable of dealing with any of the problems which are likely to arise. My last experience in Southend was that I was sent away without costs, having lost the case, and no quarter for seniority was given on that occasion. They are people well able to deal with these matters.
The proposals for pre-trial protocols and the alternative dispute procedures are outside the remit of the proposed rules committee and so the savings of cost on court time, both in the first instance and on appeal, could be immense and far outweigh the cost of servicing what the noble Lord, Lord Renton, referred to as a costly bureaucracy. Roots and branch reform of the system demand resources, time and money. This is an undertaking which is perhaps far more radical than was originally envisaged. It is more than the relatively mechanical task of producing a common set of rules and procedures and I urge the adoption of the civil justice council on the model proposed and on a statutory basis.
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