Courts: Resourcing and Staffing

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 14th July 2016 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, it is a considerable privilege and delight to be allowed to follow my noble and learned friend Lord Saville of Newdigate, and therefore be the first to congratulate him warmly on his most witty and distinguished maiden speech, although, of course, my noble and learned friend Lord Woolf has already pre-empted me and shot some of my foxes.

As all the lawyers present will know, my noble and learned friend Lord Saville was a wholly outstanding commercial practitioner and judge, and then, as all the world knows, he was plucked from the Appellate Committee of this House and dispatched to Northern Ireland to conduct the Bloody Sunday inquiry, which effectively occupied him for the next 12 years. I confess that when I read in the Times last week that my noble and learned friend had criticised Sir John Chilcot for excessive tardiness in taking seven years to produce the Chilcot report, I checked the date to ensure that it was not 1 April. However, that is a frivolous aside. As my noble and learned friend Lord Woolf has already said, the plain fact is that, prolonged and expensive though it was in the making, the Bloody Sunday report of my noble and learned friend Lord Saville was universally hailed as a masterpiece and received with acclaim. No doubt we lost a whole series of illuminating judgments on final appeals which he would otherwise have given here and in the Supreme Court. However, let us now hope that, following today’s maiden speech, he will give us the benefit of many more valuable contributions to the business of this House.

I, too, pay tribute to the Minister, whom I am sure we all fervently hope will remain in his place. Alas, a shake of the head indicates that we are to bid him farewell. I do so with great personal regret and can only hope that his successor begins to measure up to the achievements that he has recorded in his time in this House.

I pay tribute, too, to my noble and learned friend Lord Woolf for securing this debate and introducing it compellingly, as always he does—dare I suggest that he is in serious danger of becoming a national treasure? As so often in past years, in following him in giving judgment, essentially I am concerned with echoing what he said without adding any particularly dazzling insights of my own. Today I echo most particularly his emphasis on the crucial importance of a High Court Bench with the integrity and efficiency of the whole justice system—appoint the right people to the High Court Bench and the tone is set for a fundamentally sound system. How serendipitous it is, therefore, that this debate takes place in the very week that my noble friend Lord Kakkar has been appointed as the new chairman of the Judicial Appointments Commission—how glad and grateful we are that he is undertaking this hugely important role; he happily has a really excellent judicial vice-chairman in the person of Lord Justice Ian Burnett.

When I was appointed to the High Court Bench, now more than 30 years ago, I recall Louis Blom-Cooper, an old friend and adversary, congratulating me and then adding, “Remember that the office you hold is of the very first importance, but remember too that you yourself are of none”. It was no doubt a salutary caution against “judgitis”, a condition that he perhaps suspected I should be affected by. Sounder advice, perhaps, than to be told that a High Court judge’s task is to be quick, courteous and wrong, which is not to say that the Court of Appeal’s role is to be slow, rude and right, for that would be to usurp the function of the House of Lords—now of course the Supreme Court.

Frivolities aside, as my noble and learned friend Lord Woolf has made clear—and it is I think the experience of many of us—it is becoming ever more difficult to ensure that the right people are applying to the High Court Bench, the truly outstanding candidates whose great success as practitioners ensures that they enjoy the confidence and esteem of the Bar who will be appearing before them. The charge is ever more demanding; the administrative burdens placed on judges ever heavier; the likelihood of having to deal with all the problems of litigants acting in person for want of legal aid ever greater; the pension entitlement ever reduced—indeed in some cases, non-existent, because a judge who already has his pension pot cannot afford to take a pension later because he has to pay an initial large capital sum up front. How best to combat all this?

First, as my noble friend made plain, we need to do all we can to make the judges’ professional lives as satisfying and trouble-free as possible, in the way of IT, secretarial clerking assistance and indeed such comforts as still remain out on circuit in judges’ lodgings. I recognise that the limousines, the outriders, and the trumpeters of yesteryear are indeed a thing of the past, but for heaven’s sake let us at least continue to allow judges the peace and security that they need away from home and family as they try murders and other very serious cases around the country. It is imperative that they continue to go on circuit; there is no better way of maintaining professional standards, not least advocacy standards, in the provinces and disturbing the tendency that otherwise develops of a too-cosy relationship between the local Bar and local judges.

Secondly, I would urge consideration of a return to the higher retirement age that used to apply to the judiciary. My generation were allowed to sit until we were 75; some 20 years ago this was reduced to 70. To be able to continue sitting until 75 would go some way to compensating for the loss of pension rights and without disadvantage of any kind. It may be that, 20 years ago, older judges—myself not least—would have been found wanting in relevant, technical skills but this generation has no such problems. There is real value in lengthening the span of judicial careers.

Because for some years past, Lord Chancellors have no longer been able to tap a young successful Silk on the shoulder and persuade him, at whatever great personal financial sacrifice, to accept the Bench, those nowadays applying and being appointed to the High Court Bench have been older than in past times, even though now they have to do 20 years’ service to earn a full pension. It was 15 years when I was appointed, although in fact I served for 28. The Bench, including the higher appellate court, would undoubtedly benefit from somebody staying longer in post, retaining their expertise and experience and reducing the temptation which, regrettably, now exists of retiring earlier even than 70 to establish a practice and earn a fortune as an arbitrator.

In that connection, I would add this: able and successful practitioners at the Bar should be encouraged by judges, fellow Benchers and whoever has the reputation of the justice system at heart to apply to the Bench. They should, if necessary, be gently reminded of their public duty—they have done well out of the practice of the law; surely it is time to put something back into it. Demanding and financially unenticing though a judge’s life may be, I believe it to be deeply rewarding from other standpoints. One is no longer accepting a brief and arguing a case in which one may have scant faith; one is actually advancing the cause of justice and has the satisfaction of an important job well done and still, I believe, the prestige that goes with it.

In short, judges make a huge contribution to the public weal. No effort, and very little expense, should be spared in their recruitment.