Fifth Standing Committee on Statutory Instruments, &c.


Wednesday 18 November 1987



£3.70 net

Members who wish to have copies of the Official Report of Proceedings in Standing Committees sent to them are requested to give notice to that effect at the Vote Office.

No proofs can be supplied. Corrigenda slips may be published with Bound Volume editions. Corrigenda that Members suggest should be clearly marked in a copy of the report—not telephoned—and must be received in the Editor's Room, House of Commons,

not later than

Monday 23 November 1987


HMSO publications are available from:
HMSO Publications Centre HMSO Bookshops HMSO's Accredited Agents
(Mail and telephone orders only) 49 High Holborn, London, WC1V 6HB 01-211 5656 (Counter service only) (see Yellow Pages)
PO Box 276, London SW8 5DT 258 Broad Street, Birmingham, B1 2HE 021-643 3740
Telephone orders 01-622 3316 Southey House, 33 Wine Street, Bristol BS1 2BQ (0272) 264306 and through good booksellers
General enquiries 01–211 5656 9–21 Princess Street, Manchester M60 8AS 061–843 7201
80 Chichester Street, Belfast BT1 4JY (0232) 238451
71 Lothian Road, Edinburgh, EH3 9AZ 031-228 4181
Printed in the United Kingdom and Published by Her Majesty's Stationery Office ISBN 0 10 991688 3


The Committee consisted of the following Members:

Chairman: Mr. Michael Latham

Buck, Sir Antony (Colchester, North)

Carlile, Mr. Alex (Montgomery)

Carlisle, Mr. Kenneth (Lincoln)

Corbyn, Mr. Jeremy (Islington, North)

Fraser, Mr. John (Norwood)

Gow, Mr. Ian (Eastbourne)

Henderson, Mr. Doug (Newcastle upon Tyne, North)

Hoyle, Mr. Doug (Warrington, North)

Illsley, Mr. Eric (Barnsley, Central)

Marshall, Mr. Michael (Arundel)

Michie, Mr. Bill (Sheffield, Heeley)

Miscampbell, Mr. Norman (Blackpool, North)

Nelson, Mr. Anthony (Chichester)

Rowe, Mr. Andrew (Mid-Kent)

Shaw, Sir Giles (Pudsey)

Shepherd, Mr. Richard (Aldridge-Brownhills)

Smith, Mr. Tim (Beaconsfield)

Sir Nicholas Lyell (Solicitor-General)

Mr. D. J. Gerhold, Committee Clerk.

3 Fifth Standing Committee on Statutory Instruments, &c. Wednesday 18 November 1987

[MR. MICHAEL LATHAM in the Chair]


10.30 am

The Solicitor-General (Sir Nicholas Lyell): I beg to move, That the Committee has considered the draft Maximum Number of Judges Order 1987. The draft order relates both to judges of the Court of Appeal and to those of the High Court. The Court of Appeal is served by the Lord Chief Justice, the Master of the Rolls, and the lords justices of appeal who comprise the main judicial strength of the court. The President of the family division and the vice-chancellor also sit in the Court of Appeal from time to time. The maximum number of lords justices was set at 18 by section 2 of the Supreme Court Act 1981 and subsequently increased to 23 by the Maximum Number of Judges Order 1983. The purpose of this draft order is to amend the Act so as further to increase that maximum to 28. The Lord Chancellor anticipates recommending filling three or four of the extra places straight away. There are two principal reasons for requiring an increase: continuing pressure of work in the Court of Appeal and the concern of the Lord Chancellor that Lord Justice Mustill should be free to some extent from judicial duties so that he will be able to devote more time to his duties as chairman of the Judicial Studies Board. Since 1983, the work load of the Court of Appeal has continued to increase. In the civil division, which takes up the greater part of judicial time available, the number of appeals entered has risen by 8 per cent. from the 1983 level to nearly 1,600 in 1986. Over the same period, the number of cases heard increased by about 18 per cent. However, the proportion of cases settled between entry and hearing declined by nearly 40 per cent. with the result that it has been virtually impossible to make inroads into the overall number of appeals outstanding, a figure of 954 at 1 October this year. Accordingly, waiting times remain undesirably high. Although priority is given to cases of particular urgency, it can take as long as 18 months for an appeal against a final judgment to the High Court to be heard. This unsatisfactory situation will not be alleviated without further action, since the continued increase in the total work load of civil courts at first instance suggests that receipts in the civil division of the Court of Appeal will continue to rise, with consequent implications for waiting times. In the criminal division, the number of appeals entered increased by 20 per cent. between 1982 and 1985 and, although there was a small fall of 4 per cent. in 1986, it is clear that the upward trend in the case load of the Crown court is continuing. Figures for the 4 first nine months of 1987 show an increase of over 16 per cent. in the number of committals for trial received by the Crown court on the corresponding figure for 1986. The already heavy pressure on the criminal division may therefore be expected to grow. Despite the efforts of the Lord Chief Justice, the other judges involved and the registrar of criminal appeals, the number of cases outstanding at the end of 1986 had increased by more than 7 per cent. on the end of 1985 figure to more than 2,800. Of these, 7 per cent. were more than six months old. The Divisional Court of the Queen's bench division also makes substantial calls upon the lords justice's time. In 1986, it accounted for 267 days of their time is equivalent to the time of one and a half judges, and more than twice the 1982 figure of 120 days. A minimum of 13 courts are now generally sitting in the two divisions of the Court of Appeal and the Divisional Court, generating a need for a minimum of 24 lords justices. This requirement increases to at least 26 when either the president or the vice-chancellor sits in the civil division, enabling an additional court to operate there. The deficit has to be met by sittings by retired lords justices and High Court judges. The Lord Chancellor is grateful to those eminent judges who have continued to devote themselves in this way to the administration of justice after their retirement but in fairness to them, dependence on their services must not become excessive. The second reason for the increase is, as I mentioned, the need to allow Lord Justice Mustill to devote more of his time to the chairmanship of the Judicial Studies Board. The Lord Chancellor attaches great priority to the provision of the highest quality of judicial training and guidance. It is essential to the maintenance of standards of judicial performance and consequent confidence in the judiciary. It is therefore imperative that the chairman should be able to devote a substantial amount of time to his work with the board. I now turn to the question of the High Court bench. The High Court is served by the Lord Chief Justice, the President of the family division, the vice-chancellor and, currently, not more than 80 puisne judges of the court. At present, 79 puisnes are in office. It is proposed by virtue of the draft order before the House that the Act be amended so as to increase the statutory maximum to 85. The Lord Chancellor anticipates, initially, an increase in the number in office of two, to 81. Several factors combine to make the proposed increase necessary. They include the growth in work load, excessive delay in hearings in the Queen's bench division, particularly in the commercial court, and the need to avoid excessive use of deputy High Court judges. The work load of the civil courts has increased steadily since 1981. The only increase in the number of puisne judges in that period, from 77 to 79, has not been proportionate. The current situation is therefore acute in the Queen's bench division. The number of actions set down for trial in 1986 increased by 8 per cent. over the previous year, and in the first half of this year, the number of actions set down increased by a further 13 per cent. The upward trend seems likely to continue as the number of actions commenced is also rising steadily by 9 per cent. a year. 5 Despite a drop in 1986 from the exceptionally high figure the year before, which followed legislation reducing the minimum time within which a divorce petition may be filed, the number of divorce proceedings commenced has also been increasing. The number of defended divorce trials has been relatively steady, but the overall trend in family division work is upward. This is also the case in the chancery division. In the Crown court, the work load continues to rise, and there is no sign of a drop in the number of class 1 and class 2 cases, which make the heaviest demands on the time of High Court judges. Waiting times continue to cause concern. It may now take 18 months for an action, once set down in the general list of the Queen's bench division in London, to come to trial. The situation is particularly acute in the commercial court, as my hon. Friends will know, and there are delays elsewhere in the division, in the Admiralty court and in the Crown Office list. The commitments of a judge of the High Court are wide-ranging. In addition to their civil and criminal work both at first instance and on appeal, High Court judges may also sit on the employment appeal tribunal, act as Chairman of the Law Commission and be members of the Parole Board, Judicial Studies Board, or one of the rule committees. In addition, they are frequently called on to perform other important functions, often at short notice. Recent examples are the inquiry into the Bradford football stadium fire and the formal investigation into the Zeebrugge ferry disaster, both of which placed a heavy call on judicial time. My noble and learned Friend the Lord Chancellor is also concerned about the heavy use which is having to be made of deputy High Court or circuit judges on High Court work. During 1986 some 29 per cent. of total sittings were conducted by judges other than full-time puisnes. Outside London, judges who were not regular High Court judges sat for about 50 per cent. of the days spent on High Court civil work. That is a high level. Successive Lord Chancellors have been concerned not to increase the size of the High Court bench unless absolutely necessary. To that end, various initiatives have been taken to improve the efficiency of the civil justice system. They include provisions for the transfer of cases, including family work, from the High 6 Court to the county courts, and as I have said, circuit judges increasingly exercise High Court jurisdiction. More generally, however, the system is being scrutinised under the civil justice review which is being conducted by officials from the Lord Chancellor's Department. As independent committee under the chairmanship of Sir Maurice Hodgson has been set up to advise upon its conduct. A series of papers seeking views on possible improvements in the conduct of litigation in England and Wales have already been issued and recommendations are being formulated. Those initiatives will, however, require extensive consultation and, if legislation is required, a good deal of time to bring them into effect. Whatever the decisions, they cannot realistically be expected to make an impact before the end of the decade. It is therefore considered imperative to seek an early increase in the statutory maximum number of puisne judges to 85 in order to provide the medium-term needs without prejudice to longer-term requirements. The Lord Chancellor is satisfied that a minimum of two new puisne judges are required as soon as possible, and he proposes to recommend that they be assigned to the Queen's bench division where delays are currently most acute. I am sure that honourable Members will agree that the maintenance of an adequate number of judges in the High Court and the Court of Appeal is essential to the proper administration of justice. I commend the draft order to the Committee for its approval.

Mr. Bill Michie (Sheffield, Heeley): This would be an opportunity to increase the number of women judges. Has consideration been given to that?

Sir Nicholas Lyell: No distinction is drawn between men and women in the appointment of judges. Appointments are made entirely on merit. However, as more women come to the Bar and work their way through the system, one notices that more women are being appointed to the High Court bench.

Question put and agreed to.

Resolved, That the Committee has considered the draft Maximum Number of Judges Order 1987.

Committee rose at seventeen minutes to Eleven o'clock.


Latham, Mr. Michael (Chairman)

Buck, Sir Antony

Carlisle, Mr. Kenneth

Gow, Mr.

Henderson, Mr.

Illsley, Mr.

Michie, Mr.

Nelson, Mr.

Rowe, Mr.

Shepherd, Mr. Richard

Smith, Mr. Tim

Lyell, Sir Nicholas