Justice Outside London: Some background to the present Working Group
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- In January 2006, an influential Birmingham Group comprising Birmingham Forward, Birmingham Law Society, Deloitte, St. Philips Chambers and No. 5 Chambers produced an impressive Study entitled “High Court Judge Residency Impact Study for the Midlands”. The Study argued for a resident High Court in the Midlands, whereby the present system of travelling High Court judges would be replaced with a system where the work of the High Court in the Midlands would be the principal responsibility of a core of High Court judges permanently resident in the Midlands. Section 8 of the Study described the proposal showing it diagrammatically in paragraph 8.5. One of the Study’s conclusions was that the peripatetic system deriving in its modern form from the Beeching Report in 1969 discriminates against the regions in favour of London.
- In October 2005, the DCA published a Consultation Paper “Focussing Judicial Resources Appropriately”, inviting responses by 20th January 2006. The consultation included proposals, derived from the Judicial Resources Review, about the proper role of the High Court bench and how to manage its pressures. The paper noted that two key strengths of the High Court were the undoubted quality of the bench and its collegiate nature that binds the judiciary together. Undermining the strengths would undermine the justice system as a whole. There was a real risk that increasing the size of the High Court bench would be detrimental. The Government and the senior judiciary agreed that it was not appropriate simply to allow the numbers of the High Court bench to increase.
- The consultation paper invited responses to specific questions, many of them not specifically related to justice out of London. Some of the responses went beyond the particular questions asked. We have been provided with copies and have noted those which are particularly relevant to our subject. These included:
- A response dated 26th January 2006 from the Standing Committee for Legal Wales. This made the convincing case that Wales is distinct in uniquely having the National Assembly, from 2007 a separate Welsh Assembly Government and a bi-lingual court system. Part 6 of the Response headed “Judicial Resources in Wales” made a detailed and convincing case for having an office for the Administrative Court in Cardiff and a pool of High Court judges to hear Administrative Court cases in Wales.
- A response dated 23rd January 2006 on behalf of the Bar of the Wales and Chester circuit, which emphasised that Wales has a special status which should be formally recognised. This response did not share all the views of the Standing Committee for Legal Wales. It recognised that the volume of criminal and civil appeal work in Wales might not presently justify a Court of Appeal office in Cardiff. But the position of the Administrative Court was quite different. There is a very strong public interest in such cases being heard locally in Wales. There should be a proper office of the Administrative Court in Cardiff and a pool of High Court judges assigned to hear Administrative Court cases in Wales.
- A variety of responses from Birmingham and the West Midlands supporting the Birmingham Forward Study, and emphasising that the current system under which High Court civil and administrative cases are mostly heard in London is more expensive and less convenient for litigants; inhibits the recruitment and development of the local profession; puts local businesses and firms at a competitive disadvantage; loses its “stars” if they are appointed as High Court judges; and restricts the range and quality of services which are available locally. Another response suggested that it cannot be sustainable for the High Court to be drawing work from the Midlands to London when the only link with London is the judge involved. Another response said that the current system discriminates against residents of the Midlands, particularly those (statistically, normally women) with significant family commitments. It was inconsistent with the object of increasing the diversity of the High Court bench.
- A response on behalf of the Manchester civil judiciary. This in the main discussed and answered specific questions in the Consultation Paper which are not directly relevant to our present report. It did, however, question the underlying premise of many of the proposals that the size of the High Court bench should not be increased. It suggested that a modest increase in size would not diminish quality; that the collegiate nature of the High Court bench has already been diluted; and that the present policy may be supported only for financial considerations. Citizens, it is said, are entitled to expect that work which is suitable for the High Court should be tried by a High Court judge.
- A detailed and illuminating response from HH Judge Norris QC, specialist Chancery judge in Birmingham. In the course of responding to the detailed consultation questions, he emphasised that:
- the allocation of High Court judges to regional courts rather than specific cases is already the practice in the Chancery Division, but its success is dependent on the allocation of High Court judge time by reference to the listing times in the regional court.
- the important thing is to list the right case before the right judge. This can only in practice be done for High Court judges if sufficient notice is given of the times when they will be available. At the time of the response, Chancery cases in Birmingham were being listed 9 to 10 months in advance. If a High Court judge sitting is arranged on only 6 months’ notice, an artificial list and back up list has to be created for that judge.
- High Court judge time should not be allotted to regional centres only by reference to category C1 or category C2 cases. This gives disproportionate access to High Court judge time to litigants and practitioners in London. The concern to identify “High Court cases” is a “very Londoncentric view” heavily influenced by whether the case will be dealt with at the RCJ or the Central London Civil Justice Centre. Out of London, the case will be managed by the same judges in the same building however it is categorised.
- A response from the Presiding Judge of the Western Circuit expressing concern that the categorisation model in the Consultation Paper would have a gravely damaging impact on the deployment of High Court judges on the Western circuit. We understand the concern to be that, if categorisations for both criminal and civil cases are rigidly applied, High Court judges would virtually never sit south and west of a line drawn between Winchester and Bristol, apart from when a presiding judge visits towns and cities in the West of England for administrative reasons.
- We have briefly summarised these views as background and because those to which we have referred are relevant to our present consideration. Our terms of reference do not extend to reconsidering the appropriate size of the High Court bench; nor, for obvious practical reasons, to enabling us to recommend the establishment of one or more resident regional High Court benches of the kind proposed in the Birmingham Forward Study. We record that, as individual judges, we personally support the present policy of restricting the size of the High Court bench. Regional resident High Court benches could not conceivably be established out of anything like the present compliment of judges in Cardiff, Birmingham, Manchester and Leeds – for it could not be done for the Midlands only – without fracturing, not only the national collegiate quality of the higher judiciary (including the judges of the Court of Appeal), but also entirely necessary components of the present system. The most obvious of these is the need for High Court judges to sit and have the experience of sitting in the Court of Appeal Criminal Division, a duty which the large majority of QB judges presently has to undertake for a minimum of 9 weeks each year. We record that, as individual judges, we are not personally in favour of a fragmented High Court bench. Our present joint views were adumbrated in Gibbs J’s letter of 26th April 2005, which is Appendix D to the Birmingham Forward Study.
- When May LJ attempted to explain in outline these and related matters at the meetings in Birmingham, he understood that representatives of Birmingham Forward appreciated the difficulties with their proposals; and that they expected to be reasonably content, for the moment at least, with positive proposals which this Report would make (assuming that they would be implemented), especially those relating to the Administrative Court, which they, with many others, fully support. They do, however, maintain their full proposals – see Appendix H to this report.