Courts: Resourcing and Staffing

Debate between Earl of Courtown and Lord Woolf

Thursday 14th July 2016 Lords Chamber

[Lord Woolf (CB)]

My Lords, I draw attention to my statement of interests in the register.

I am most grateful to those who have put their names down to speak in this short debate and I look forward to their contributions. This is particularly true of the maiden speech of my noble and learned friend Lord Saville of Newdigate, who I am confident will add to the importance of the debate. Both as a barrister and as a judge, he had an outstanding and glittering career. He was responsible for transforming our arbitration law as chairman of the committee whose report led to the Arbitration Act 1996. He contributed to the peace process in Northern Ireland by the report of the second Bloody Sunday inquiry, of which he was chairman. I assure the House that I, like many of his judicial contemporaries in the law, am sad that his public duties as chairman of that inquiry meant that his opportunities to give judgments—which would undoubtedly have developed the law, both as a Law Lord and a judge of the Supreme Court—were not as great as they otherwise would have been. I am sure I am not alone in looking forward to his contribution this afternoon with the highest possible expectations.

Finally on the topic of contributions to the development of our law system, I am glad that it is possible to express my pleasure in this debate that the noble Lord, Lord Faulks, is the Minister responding on behalf of the Government. These are times of extraordinary change in the political hierarchy and it is impossible to forecast what will happen next. So, just in case the Minister’s wisdom, industry, unfailing courtesy and general contribution to the administration of justice do not produce the results for which I hope, I should like, as the most senior judge—in age—present, to record my appreciation of his contribution.

Turning to the title of this debate, it is to be noted that it refers both to resourcing and staffing the courts and to supporting the rule of law. I accept that at present, resources for the public sector have to be tightly constrained. However, this requires the Government of the day to deploy the resources that are available selectively. In particular, I suggest, they should do so in a way that will best safeguard those institutions whose activities are of significant value to the well-being of the public of this country. High among those institutions are surely those involved in providing justice. I refer of course to our courts and judiciary, and to the officials by whom they are supported. They play a critical role in preserving the rule of law and thus our unwritten constitution.

During the 60-plus years in which I have been involved with the law, the importance of protecting the administration of justice, confirmed by the Courts Act 2003, has always been recognised—and I have always thought that it would continue to be recognised—as a matter of the greatest importance. However, recently I became increasingly concerned that the situation was changing, and changing dramatically for the worse. The resources available have, year after year, been dramatically reduced, and this is resulting in an alarming picture across the system. There are isolated exceptions—for example, the situation in the new Rolls Building for commercial and financial cases. However, the generality is uniformly bleak. There can be no dispute that the whole of the courts and tribunals and the buildings and systems that the Courts Service provides need profound modernisation.

For the general picture, I refer to the admirable House of Lords Library Note prepared for this debate, which excellently summarises the picture. It makes gloomy reading, although it rightly refers to recent government statements which promise a brighter future. However, I certainly cannot provide any assurance that the promised resources will be forthcoming, and I doubt whether the Minister will be able to do so either. Only a start has been made. Naturally, as this has involved the closing of court buildings, the action taken has not attracted applause, even if it is necessary. However, I urge anyone interested in the future of justice in this country to read that note. I also refer in particular to the acceptance by the Government of the need for action to improve the situation and the assurances that have been given that something will be done, including spending vast sums of money. As to the existing position, the note repeats the statement of Her Majesty’s Courts Service in its annual report of 2015 that,

“the level of service … at a court or tribunal is at best inconsistent and, at worst, frustrating, despite the continuing great efforts of our staff and the judiciary”.

The chief executive stated on 23 September 2015 that its systems were,

“no longer good enough to support the fair administration of justice”.

Surely that is a very worrying concession.

The note also refers to the Chancellor’s Autumn Statement of November 2015, in which he indicated that the Government were making available more than £700 million to modernise and fully digitise the courts. It referred to statements by two successive Lord Chancellors and Secretaries of State for Justice recognising the need for this scale of investment to achieve more effective and efficient courts and tribunals. What better confirmation could you have that the position of the justice system is at present, alas, in a sorry state than the fact that Mr Osborne, Mr Grayling and Mr Gove are at one in promising vast sums of money in the future? But when is this largesse to arrive? What economies will be required elsewhere? If it is dependent on existing buildings being sold, does Brexit mean that the calculations have to be revised?

I have one additional citation, this one being from the Master of the Rolls in respect of possible amendments to the CPR and Practice Directions of 19 May 2016. He states:

“The proposals in this consultation paper have been drawn up in response to the major pressures facing the Court of Appeal’s Civil Division. The pressures are such that last year I took the reluctant decision to increase significantly the hear-by dates for the court, to reflect the realities of longer waiting times for hearings and for appeals to be determined.

The problems are getting worse. The volume of appeals is continuing to rise. The court’s workload has increased by 59% in the past five years. There has been no increase in judicial resources. There is already a serious backlog of cases waiting to be heard and in addition there is a significant shortfall in the amount of judicial time required to deal with the amount of work coming into the Court of Appeal each year and the amount of judicial time in fact available to deal with it. This means that the backlog is growing year by year and delays in the Court of Appeal are becoming longer and longer.

This is a matter of serious concern within the Court. Justice delayed can be justice denied”.

To underline those remarks, I would add that, as is well known, the existence of backlogs breeds further backlogs that can exhaust the energy of any legal system. However, the proposed modernisation, even though it may be late in the day, is still very welcome. I hope that it will be provided and that it will be successful. If it is, we may avoid in the future the damage to the administration of justice that is now occurring. My hopes are, however, tempered by the fact that this year is the 20th anniversary of the delivery of my report on access to justice. It was favourably received by the then Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern, and, although the procedural reforms that I recommended were implemented, I still await the implementation of the digital reforms which were to be provided. They could transform the situation.

I now turn to an area of concern where there is a problem which, if allowed to fester, could cause irreparable damage. I refer to our continued ability to persuade sufficient of our outstanding lawyers to give up their highly successful and profitable practices to become High Court judges. To understand the extent of my concern as to this, it is important to appreciate the central role that the High Court judiciary has played in the justice system in this jurisdiction. I appreciate that my former colleagues and other lawyers are well aware of this, but others may read Hansard and there may even be present a non-lawyer or two who would be assisted if I outlined the position.

High Court judges, besides being free from corruption and almost universally of high calibre, epitomise the independence that is the hallmark of our judicial system. They set standards of professionalism which are admired around the common-law and civil-law worlds. Their role includes conducting the most difficult criminal and civil cases, including judicial review. They continue to travel to different parts of the country on different circuits. In particular, presiding judges carry a heavy administrative responsibility in relation to local justice. The Lords Justices who sit in the Court of Appeal are appointed from among their number and in due course, with rare exception, it is former Lords Justices who are appointed to the Supreme Court. Their standing explains why the number of appeals from their decisions is much lower than in most other jurisdictions. There is much more that I could say about the many other tasks performed by High Court judges, but I content myself by saying their role is pivotal to the well-being of our system.

I found it extremely gratifying when I retired as Lord Chief Justice in 2005 that in many cases, if not all, despite the loss of income involved—usually a reduction of at least 30%—lawyers of exemplary calibre were prepared to apply to become High Court judges in sufficient numbers to fill vacancies as and when they occurred. Worryingly, there are now signs that the position is changing. It is not easy to find judges to fill vacancies. If this continues, it will be extremely damaging to our justice system. Talking to senior lawyers who I would expect to be in the frame for appointment, they tell me that they have decided not to apply. They give a combination of reasons for not doing so. Among them are that the burden of work has increased to an extent that makes the job appear unattractive even when compared with being in private practice. They complain of lack of support. While in the past the judicial pension was an attraction, changes in the tax regime mean that this has ceased to be the position. For the most successful lawyers, whom it is particularly important to recruit, a—no doubt unintended —consequence of the changes made in the pension tax regime is that they can be well advised to decline the judicial pension, and this is what some have done. As the Lord Chief Justice has recently pointed out, in some cases, as an effect of tax, High Court judges’ pensions can be substantially lower than those of a district judge.

Restrictions in the availability of legal aid have also had adverse consequences for the judiciary. They have made the task of presiding in court more difficult, with the judge, while trying to preserve a position of independence, having to assist unrepresented parties and give judgment on the evidence that he himself has elicited. I detect a feeling among potential candidates for appointment that judges’ contribution to society is not valued to the extent it was in the past, although judges still compare well in comparison to politicians in the popularity stakes. I have taken the message that has been given by the Front Bench and shall come to a conclusion.

As to what to be should be done, I suggest that the next Lord Chancellor would be well advised to appoint an experienced former judge to conduct an inquiry, and take soundings on the best measures to take. It is important that such measures are taken as soon as possible, because we must not let the present position fester longer. Being a judge is still a wonderful job—

[The Earl of Courtown (Con)]

I apologise to the noble and learned Lord. There are about two minutes spare in this two-hour debate and he has just taken them up, so I am afraid that we have to go on to the next speaker.

[Lord Woolf]

If the noble Earl had waited one minute, I could have saved one of those minutes, as I was just about to say that I still hope that judges will be appointed from the profession to the High Court Bench.