45. Normally, the question whether the Government allocates sufficient resources to any particular area of state activity is not justiciable. A decision as to what resources are to be made available often involves questions of policy, and certainly involves questions of discretion. These are matters for policy makers rather than judges: for the executive rather than the judiciary: cf X (Minors) v Bedfordshire County Council [1995] 2 AC 633 and R v Cambridge Health Authority ex p B [1995] 1 WLR 898, 906D-F; see too the speech of Lord Slynn of Hadley in R v Chief Constable of Sussex ex p International Trader’s Ferry Ltd [1999] 2 AC 418 at 439A-B, and the judgment of Moses J in Hooper v Secretary of State for Work and Pensions [2002] EWHC 191 (Admin) at paragraph 100. However, as has been seen, when issues are raised under Articles 5 and 6 as to the guarantee of a speedy hearing or of a hearing within a reasonable time, the Court may be required to assess the adequacy of resources, as well as the effectiveness of administration; and it is common ground that the Court must do so in the present cases.

46. It is at this point that I must mention an important qualification. In general a court is ill-equipped to determine general questions as to the efficiency of administration, the sufficiency of staff levels and the adequacy of resources. It is one thing to instruct a team of management consultants to go out into the field to study and to report on the efficiency and adequacy of the Tribunal system and its practices; it is another to expect a judge, in the confines of a two-day hearing, to reach sensible and reliable conclusions as to whether, for example, the practice of allocating hearing dates before it is known whether a panel will be available is an aid or a hindrance to speedy hearings. Not only is the time available to the court limited: so is the evidence; and such expertise as the judge may have is, notwithstanding the title to this Division of the High Court, legal, rather than administrative.

47. In my judgment, the correct approach in a case that raises issues of this kind is, first, to consider whether the delays in question are, on the face of it, inconsistent with the requirement of a speedy hearing. If they are, the onus is on the State to excuse the delay. It may do so by establishing, for example, that the delay has been caused by a sudden and unpredictable increase in the workload of the tribunal, and that it has taken effective and sufficient measures to remedy the problem. But if the State fails to satisfy that onus, the claimant will have established a breach of his right under Article 5(4).