Courts Bill [H.L.]

HL Deb 18 February 2003 vol 644 cc1097-126

8.7 p.m.

The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Viscount Simon) in the Chair.]

Clause 79 [Power to change certain requirements relating to Committee]:

[Amendment No. 115 not moved.]

Clause 79 agreed to.

Clause 80 [Process for making Civil Procedure Rules]:

[Amendments Nos. 116 to 120 not moved.]

Clause 80 agreed to.

Lord Hunt of Wirral moved Amendment No. 121: Before Clause 81, insert the following new clause—

"APPEALS TO COURT OF APPEAL: REFERENCES BY THE CRIMINAL CASES REVIEW COMMISSION (1) In section 9 of the Criminal Appeal Act 1995 (c. 35) (cases dealt with on indictment in England and Wales), after subsection (4) there is inserted— (4A) In proceedings before the Court of Appeal following a reference under subsection (1), the appellant's grounds of appeal shall be restricted to the matters specified in the Commission's statement of reasons given under section 14(4), unless the Court of Appeal grants leave to the appellant to include other matters in the grounds of appeal. (2) In section 10 of the Criminal Appeal Act 1995 (c. 35) (cases dealt with on indictment in Northern Ireland), after subsection (4) there is inserted— (4A) In proceedings before the Court of Appeal following a reference under subsection (1), the appellant's grounds of appeal shall be restricted to the matters specified in the Commission's statement of reasons given under section 14(4), unless the Court of Appeal grants leave to the appellant to include other matters in the grounds of appeal.—

The noble Lord said: Amendment No. 121 stands in my name and that of my noble friend Lord Kingsland. The Criminal Appeal Act 1995 was a landmark achievement of the previous government, welcomed on all sides of the Chamber for establishing a framework for the correction of miscarriages of justice. I pay tribute in particular to the work of my noble friend Lady Blatch in piloting that Act through this place.

The amendment has its origin in the recent comments of senior judges in the Court of Appeal who have raised the issue of whether the existing provisions in the Criminal Appeal Act 1995 are as effective as they might be because they allow an unfettered discretion to appellants whose cases have been referred to the Court of Appeal by the Criminal Cases Review Commission to raise any grounds of appeal, even ones which had not been considered by the CCRC and, indeed, even ones which were specifically rejected by the CCRC.

Normally, an appellant is able to argue before the Court of Appeal only those grounds which he or she has at an earlier stage been granted leave to argue. The amendment would restrict an appellant who was before the Court of Appeal following the referral of his case by the commission to use as the basis of his appeal the grounds given by the CCRC in its statement of reasons for making the reference unless the Court of Appeal granted leave to extend the grounds of appeal. I confess that the wording of the amendment is based on the recommendations for change set out by the Court of Appeal.

In the case of R v Garner [2002] EWCA 1166, the Vice-President of the Court of Appeal, Lord Justice Rose, said at paragraph 10 of the judgment that: by virtue of section 14(5) of the Criminal Appeal Act 1995, the somewhat curious situation arises that, once a case has been referred to this Court by the Commission and, in consequence, is treated as an appeal, it is open to an appellant to argue any ground, once the matter has been referred. An appellant is not limited to those grounds on which the Commission refers the case".

In the case of Re v Smith, [2002] EWCA Crim 2907, Lord Justice Buxton said, in giving the judgment of the Court of Appeal at paragraph 25, after referring to the judgment of Lord Justice Rose which I have just quoted: Lord Justice Rose described this as a somewhat curious situation. We would, with respect, go somewhat further, and say we have to find it very surprising indeed that this licence is given to a person who benefits from a CCRC reference, and particularly surprising to find that in this case, as we do find, that approach is open to an appellant even in respect of a ground that has been rejected in terms by the CCRC. That, however, we are constrained to say, is the law, subject to the Act being amended and we would respectfully suggest that an amendment in these terms, certainly to exclude the sort of case we have before us at the moment, is much to be commended. But as the law stands at the moment, Mr Smith is entitled to put forward any ground that he is advised can properly be pursued in relation to the case below".

Finally, unless the Minister wishes to rise to say, "I concede" no? in Re v Bomber [2002] EWCA Crim 2912, a case which attracted great public attention as a result of the terrible murders committed by Bamber, Lord Justice Kay said at paragraph 3 of the judgment: This case comes back before this court following a reference by the Criminal Case Review Commission ("the CCRC") under Section 9 of the Criminal Appeal Act 1995. As we shall explain the reference came about solely because of fresh scientific evidence. However, once the reference has been made, under the legislation as it presently stands, it is open to those advising the appellant to take any point that they wish. That is so whether the other point is related to the initial reference point or not and there is no requirement to obtain the leave of the court to pursue a particular ground as there would be on any other form of appeal against conviction".

Lord Justice Kay concluded—I shall not quote his conclusion in full although I refer the Minister to paragraph 522—in this way: We would not want to see an appellant shut out from trying to raise a point following a referral but we can see no justification for not having the filter present in such circumstances of requiring leave to raise additional matters to those referred by the CC.RC that is present in all other appeals brought by a convicted person. The Court of Appeal Criminal Division is pressed to deal sufficiently expeditiously with the caseload that it has and time unnecessarily wasted means that cases where the court subsequently determines that someone is wrongly detained in prison are delayed. We hope that thought will be given to making this relatively modest change to the legislation that would enable the court to make more efficient use of its time".

Those suggestions as to how the wording of the Act could be improved advanced by the Court of Appeal in its judgments are the basis for Amendment No. 121. As the Minister will recognise, it is still possible for an appellant to obtain the leave of the Court of Appeal to raise matters not considered by the CCRC or, indeed, matters rejected by it. That was the solution put forward by Lord Justice Kay, which I have just quoted.

I recognise that these are issues of great importance and that the existing wording was enacted by Parliament in 1995. But we, as legislators, would not be doing our job properly if we did not examine and review the effectiveness of the legislation we pass, especially where the courts make such clear recommendations pressing us to make amendments

I therefore tabled the amendment to give the Committee an opportunity to consider the recommendations made by the Court of Appeal. I also ask: what consideration have the Government given to the judgments in the cases that I have cited, which were given last year? I beg to move.

8.15 p.m.

Lord Thomas of Gresford

In the cases cited by the noble Lord, Lord Hunt, one hears—as one frequently hears from the Court of Appeal—the words, "expedition, efficiency" and so on. One does not necessarily hear the word "justice". From time to time points arise during an appeal or in its preparation which absolutely demand to be heard and there is nothing more frustrating than to hear the Court of Appeal say, "You did not get leave on that point". I oppose the amendment.

Lord Mayhew of Twysden

I suggest that the noble Lord's point would be covered by the provision in the amendment which allows the Court of Appeal to grant leave. That leave does not have to be given at the beginning or before the appeal is heard, it can perfectly well be given if a point arises in the course of the hearing, as is quite often done.

As my noble friend Lord Hunt said, the legislation which reached the statute book in 1995 was a great advance. However, it appears to be blemished by an undue liberality which permits any ground of appeal to be advanced in addition to those authorised by the tribunal itself.

The case for the provision virtually makes itself, so I shall not spoil it by continuing. I rose simply because that last point raised by the noble Lord on the Liberal Democratic Benches can be met by the well-established right of the Court of Appeal to grant leave even during the course of a hearing.

Baroness Scotland of Asthal

I thank the noble Lord, Lord Hunt, for raising the issue. I assure him that I am aware that the senior members of the judiciary in the Court of Appeal are concerned that cases referred by the Criminal Cases Review Commission, in which appellants bring forward additional grounds not given by the commission in its reference to the court, can delay the work of the court. I understand that that can occur particularly when appellants represent themselves. I am very happy that the noble Lord has given us such an exhaustive exposition of when this can occur.

However, we must put the matter within its contextual history when considering the amendment. Noble Lords will wish to take into account the background to the present law and to bear in mind that what the noble Lord suggests in fact returns us to a position which prevailed prior to the 1984 case of Regina v Chard and to the legislation current at that time, which was the 1907 legislation.

Section 19 of the Criminal Appeal Act 1907 empowered the Secretary of Sate to refer whole cases to the Court of Appeal. In the case of Caborn-Waterfield in 1956, the Court of Appeal (Criminal Division) held that the grounds for the court to consider were those made only in the reference of the Secretary of State. The wording of Section 19(a) of the 1907 Act was subsequently amended and in 1984 the House of Lords, in R v Chard, held that a reference to the Court of Appeal under Section 17(1)(a) of the 1968 Act was a reference of the case in its entirety, and that the court could not restrict its consideration to the ground referred by the Secretary of State. When the law was reviewed by the Royal Commission on Criminal Procedure, it recommended that although the power to refer cases to the Court of Appeal should be transferred to an independent authority, it should continue to be open to the appellant to raise before the Court of Appeal any matter of law or fact, or mixed law and fact, as he or she wished, regardless of whether it was included in the papers sent to the court by the authority.

We all know how important are the cases referred to the Court of Appeal under that rubric, and the importance of allowing a full, open and transparent hearing. The then government—I, too, applaud the government of the day—accepted the Royal Commission recommendations. Section 14(5) of the Criminal Appeal Act 1995 provides that in the case of CCRC reference, the appeal may be on any ground relating to the conviction, verdict, finding or sentence, whether or not the ground is related to any reason given by the Commission for making the reference". That is right.

The amendment therefore runs counter to the clear intention of the 1995 Act and would reverse the House of Lords opinion in Chard and move in the direction of the earlier 1956 judgment in Caborn-Waterfield. That would be a retrograde step. It would change the nature of a CCRC reference to the Court of Appeal by limiting the present rights of the appellant in respect of such references. Although we recognise that the effect of the present law may in some cases cause practical difficulties in the operation of the Court of Appeal, the Government do not believe that it would be right to contemplate any change to the rights of appellants in CCRC reference cases.

Therefore, although we understand the sentiments expressed by the noble Lord, Lord Thomas of Gresford, on this occasion I can give the noble Lord, Lord Hunt, no comfort.

Lord Hunt of Wirral

I am grateful to the Minister for her response. I can well understand and sympathise with the words of the noble Lord, Lord Thomas of Gresford, I share the view of my noble and learned friend Lord Mayhew of Twysden that the answer to the noble Lord lies in seeking leave for those grounds to be added to the grounds of appeal.

I am grateful to the Minister for her applause for my noble friend Lady Blatch and for the government of which I was a member in proposing the legislation. Although the Minister explained that she believed that the amendment would have retrograde effect, I am still troubled when there is such clear demand from such senior judges for an amendment more or less in the terms of this one. However, I now want time to reflect on the points that the Minister made and to discuss them with those who initially wanted the subject aired and the amendment tabled. Reserving the right to return to the issue later, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hunt of Wirral moved Amendment No. 122: Before Clause 81, insert the following new clause— Court of Appeal: Attorney General's power to refer unduly lenient sentences In section 35(3) of the Criminal Justice Act 1988 (c. 33) (scope of Part IV) after paragraph (b)(ii) there is inserted— ; or (iii) for an offence under section 9 of the Theft Act 1968 (c. 60) (burglary)".

The noble Lord said: This amendment would put sentences imposed for the offences of burglary within the scope of the power given to the Attorney-General by the Criminal Justice Act 1988 to refer unduly lenient sentences to the Court of Appeal.

Under the 1988 Act, the Attorney-General may refer to the Court of Appeal sentences appearing to him to be unduly lenient that have been passed in respect of all offences triable only on indictment, such as manslaughter, rape and robbery, and sentences passed for certain "either way" offences specified by order of the Secretary of State. Offences that have been so specified include indecent assault, serious fraud and certain smuggling and drugs offences. Although aggravated burglary—where a weapon is used—is already within the scope of the power to refer, as it is an indictable-only offence, the basic offence of burglary is not.

Sentences for burglary have been much in the news recently, particularly over the past couple of months, since the guideline judgment of the Court of Appeal in R v McInerney in December last year. There has been a huge amount of public comment. Your Lordships' Committee is not the appropriate forum for me to advance detailed criticism of the sentencing guidelines recently laid down in that case by the noble and learned Lord the Lord Chief Justice, so I shall resist any temptation to do so. However, it is beyond doubt that the public, particularly the victims of burglary, are deeply concerned about the sentences now being passed on burglars. A system of criminal justice, in particular the sentences handed down to those convicted of serious crimes, must command the confidence of the public to be able to operate effectively.

The noble and learned Lord the Attorney-General said in your Lordships' House as recently as 21st January that public confidence in the system is one of the factors that he considers when he decides whether or not to exercise his discretion to refer unduly lenient sentences to the Court of Appeal. It is worth quoting him: There are also occasions where the Law Officers will think it appropriate to ask the Court of Appeal senior judges to consider whether any adjustment to the guidelines is appropriate. That would be for the guidance of all sentencing judges and to increase public confidence in the system".—[Official Report, 21/1/03; col. 552.]

I agree. Amendment No. 122 is important not only because it would give the Attorney-General the right to bring a reference to the Court of Appeal to ask for the guidelines given in R v McInerney to be revised, should the noble and learned Lord or any of his successors wish to do so, but it would also allow the Attorney-General to refer unduly lenient sentences imposed even under the present system.

Many Committee Members will have seen the reports of the confusion generated following the recent judgment of the Court of Appeal. That confusion exists among the judiciary as well as the public. The noble and learned Lord the Lord Chief Justice had to take the unusual—I think that it is almost unprecedented—step of issuing not one, but two, statements seeking to clarify the Court of Appeal's judgment. One was contained in a letter to judges and magistrates on 23rd December; the other was made in open court on 14th January. The Lord Chief Justice said in the latter statement that, the judgment is not a charter to offenders to commit burglary".

However, following the judgment, there have been a number of high-profile cases in which community sentences have been imposed on offenders who could previously have expected to receive a lengthy prison sentence. I believe that there is, therefore, still confusion about the application of the new guidelines, not only among the public but also on the part of some members of the judiciary. As the Minister will understand, the amendment would go some way towards remedying the situation. If trial judges have been confused by the coverage of the Court of Appeal's judgment and are passing sentences that are unduly lenient—even under the new guidelines—the Attorney-General will be able to take swift action to bring such cases before the Court of Appeal. As I said, it would also be open to the Attorney-General, should he consider it appropriate, to argue in such cases that the McInerney guidelines should be revised.

Noble Lords on the Benches opposite will, no doubt, remember their party's 1997 manifesto, in which the Government promised that the Attorney-General's power to appeal unduly lenient sentences would be extended. Noble Lords will remember the debates on the Crime (Sentences) Bill in 1997. On lath January, 1997, in another place, the then shadow Home Secretary, Jack Straw, moved an amendment to that Bill that would have extended the Attorney-General's power to appeal unduly lenient sentences to include any sentence passed by the Crown Court for any offence. I shall not take much time, as we do not have much this evening, but I refer the Minister to col. 80 of the Official Report for another place, where she will find the words of Jack Straw in that debate.

The Committee may recall that a similar amendment was moved in this House by the noble and learned Lord, Lord Williams of Mostyn, on 13th February, 1997. The noble and learned Lord said: One is dealing with the protection of the public. There are undoubtedly some sentences which are over-lenient and which fall into the category of offences triable either way".—[Official Report,13/2/97; col. 408.]

That is the background to our debate tonight. After May, 1997, the new Government did not implement the policy that they had advocated in March, 1997, despite the elevation to office of Mr Straw and the noble and learned Lord, Lord Williams of Mostyn. They made some further extension to the powers of the Attorney-General in the Criminal Justice Act 1988 (Reviews of Sentencing) Order 2000. The amendment would achieve what the Government were committed to—at least, in the spring of 1997.

I agree that the amendment is focused on burglary. As the Committee is aware, there is especial public concern about the sentences that are being passed on burglars. In all the circumstances that I have outlined, the correction of unduly lenient sentences is vital, if we are to maintain public confidence in the system of criminal justice. I beg to move.

8.30 p.m.

Lord Thomas of Gresford

The noble Lord referred to the sentencing guidelines that were issued in December. They were not issued in a vacuum; they were issued after consultation between the Lord Chief Justice and the Sentencing Guidelines Council—or whatever its name is these days. We were also told in January that they were issued after consultation with the noble and learned Lord the Lord Chancellor and the Home Secretary.

The Committee will recall that, when the Lord Chief Justice was attacked in the tabloid press for what he had sensibly said about the effect of community sentences, the noble and learned Lord the Lord Chancellor stepped in behind him and supported what he had said, in accordance with the agreement that had, apparently, been reached. It was, therefore, surprising to find that the Home Secretary did not do the same. Having heard the furore over the comments made by the Lord Chief Justice and the noble and learned Lord the Lord Chancellor, the Home Secretary took a different course and broke what we had been told in January was the consensus between the three people to whom I referred.

If public confidence is to be restored in community sentencing, it is not to be restored by a measure such as this. Why should the Attorney-General take 70,000 or 80,000 burglary offences under his wing—it is by far the largest tranche of cases which go to the Crown Court—and start going to the Court of Appeal to complain about their leniency when the Court of Appeal in the shape of the Lord Chief Justice has already indicated that we should look at the guidelines for sentencing in simple burglary cases once again? I do not believe that any Attorney-General responsibly would do that. I see no point in the amendment and I oppose it.

Lord Donaldson of Lymington

The basic point is that there should be no area of criminal justice which the public feel is important but where some sentences are too lenient without there being some remedy. I do not criticise the Lord Chief Justice in any way—I am not in a position to do so. I am not interested in the furore which arose in relation to burglary. However, it might well be that the controversy could be stilled if the Attorney-General had the right to refer a sentence to the Court of Criminal Appeal while indicating that in general be thought community sentences were the right answer. One can easily pick a case in which it is absurd, but one can say, "This is a unique example and the general rule is different'.

Burglary affects enormous numbers of people. In so far as it was suggested by anyone that it was a trivial offence or did not worry householders, that is plainly contrary to all common sense and experience. However, it does not mean that the power of the Attorney-General is necessarily needed for too lenient sentences. That is the trigger, but it might be used in a different way in order to support a general run of guidelines which could be justified. Coming from that quarter, the public might be more reassured than they are at present.

Lord Mayhew of Twysden

I half feel that I ought to declare an interest as when in 1988 I was Attorney-General I introduced the measure against a certain amount of principled opposition. However, that opposition has subsequently disappeared. The way in which successive Attorneys have used the power—sparingly but with discrimination—has attracted approval.

A month or so ago, I went with the necessary care into the pronouncements of the Lord Chief Justice and I, too, found nothing to criticise in what he said. I did not think that his comments were a charter for burglars, or an indication to the judiciary that they should sentence every burglar to a community service order, save for the most heinous of the lot. I thought that ultimately it stood the test of realistic and practical examination.

However, I am afraid that the whole episode gave rise to some confusion. As my noble friend Lord Hunt said, there were one or two high profile cases in which the court indicated that normally it would have imposed a custodial sentence but by reason of recent pronouncements felt constrained to order a community service order.

I respectfully agree with what has been said by the noble and learned Lord, Lord Donaldson, that it by no means would follow from the amendment being carried that the norm should be tougher than that at present established—whatever the norm is. However, I believe that there is no serious case for opposing adding burglary to the raft of cases which come within the discretionary powers of the Attorney-General—for reasons given by the noble and learned Lord, Lord Donaldson, among others. I think that they would be exercised with the same degree of discrimination, as well as equally sparingly, as has been the rule over the past few years.

I hope very much that the Government will accept the amendment. It would restore confidence and to the extent that there may be residual confusion enable that to be corrected in a proper case.

Baroness Seccombe

Having listened to professionally qualified speakers, I wish to add a comment. In my capacity as a magistrate up to the year 2000, during training I was told that a magistrate's sentencing powers were not sufficient and that every case of burglary should go to the Crown Court because the sentence should start at nine months. When one has been trained in that way, to hear something quite to the contrary has added to the confusion, not only for magistrates but also for the public.

People see burglary as an act of violence. We should not forget that some people, in particular the elderly, never get over it and cannot live alone again.

Baroness Scotland of Asthal

In response to the comments made by the noble Baroness, Lady Seccombe, can I say straightaway that we understand absolutely that people do not recover from certain kinds of burglaries. Burglary is a terrible offence. However, the difficulty arises because the crime covers a broad spectrum, from the person who puts their hand through a window to steal a bottle of milk—technically that is a burglary—to acts of real violence at the other end of the spectrum, involving direct assault on an individual in their own home. Both are crimes of burglary, although they are different in nature and we would differ in our response in terms of sentencing. I take the point on board.

The noble and learned Lord, Lord Mayhew, with his usual wisdom, was right to comment on the content of the advice given by the Lord Chief Justice in relation to the guidelines. If one takes the trouble to read—them it is obvious that the noble and learned Lord has done so—they are clear and perfectly sound. Indeed, the noble and learned Lord very ably made that point. It is regrettable that there has been so much ill-informed comment and misunderstanding about them.

However, we have to look at what is already in place. We believe that it would be unnecessary to accept the amendment. Perhaps I may take a few moments to explain why. The Home Secretary already has powers to extend by order under Section 35(4) of the Criminal Justice Act 1988 the range of triable either way offences where unduly lenient sentences can be referred by the Attorney-General to the Court of Appeal. Furthermore, we see no need to add burglary offences to the Attorney-General's powers. As has already been mentioned, while there has been much discussion about sentencing and burglars, we have no reason to believe that the courts are not imposing appropriate sentences or that the assertion that they are being unduly lenient is true.

Any appeals against sentences are more likely to be for burglaries that involve acts of violence or another serious offence. Those burglaries are likely to be triable only on indictment and therefore already can be referred to the Court of Appeal by the Attorney-General if he considers the sentence unduly lenient.

If we want to ensure that burglars are sentenced appropriately, then we should ensure that the courts are clear on what the Government expect to see. The sentencing guidelines will assist in that. But we must place our faith in sentencers to get sentencing right. After all, we know that they are the individuals who hear the full facts of a case and are therefore best placed to make the judgment. Perhaps noble Lords have shared my experience when sometimes reading a report of a court case about which I know a little. I can see no relation between what I know and the report which appears in the newspapers. We must be a little cautious because the case may not always be as it appears.

Adding burglary to the Attorney-General's powers could send out an unwelcome message that we believe that the courts are getting it wrong. I have yet to see any evidence of this from anything that noble Lords have said or from elsewhere. Throughout the recent controversy over sentences for the offence of burglary following the Lord Chief Justice's guidelines of 19th December, in which community sentences were recommended as a starting point for first and second time non-serious burglary cases, the Government have stressed the seriousness of the offence.

There may be cases of first and, more exceptionally, second time minor burglaries that can be dealt with adequately by community sentences but, as a norm, as the noble Baroness, Lady Seccombe, made plain, burglary is the kind of offence that would attract a custodial sentence.

The Government welcome the Lord Chief Justice's clarification regarding the issue of repeat offenders in his statement of 14th January. In that statement, as your Lordships know, he stressed that the court had emphasised at the outset of the judgment that, in applying the guidance, it was necessary to have regard to the particular circumstances of the offence, its effect upon the victim and the record of the offender, not only in other cases of domestic burglary but generally.

The Attorney-General's powers to refer unduly lenient sentences are personal. Therefore, if we were to add burglary to the Attorney-General's powers, this would place an additional burden on already stretched services. In 2001, the most recent year for which figures are available, 7,942 offenders were found guilty of domestic burglary. While that is not in itself a reason not to amend the legislation, it is an important factor that the Government will wish to take into account.

In addition, were burglary to be added to the Attorney-General's powers of reference, we believe that there would be calls to add other offences, such as theft, which would make the burden on the Attorney-General unmanageable. He can properly deal with the more serious burglaries at the moment; the others remain outside his remit. I invite the noble Lord lo withdraw the amendment, given the assurance that these issues are covered already.

8.45 p.m.

Lord Hunt of Wirral

I am confused by the Minister's argument. On the one hand, she has stated very clearly that she believes the problem is already adequately covered; but, on the other hand, she has stated that the amendment would send an unwelcome message that the courts are getting it wrong. In trying to reconcile that conflict, I am guided by my noble and learned friend Lord Mayhew. He explained that when he introduced the legislation some years ago there was a considerable furore in the press along the lines that we were stating clearly that the courts were getting it wrong. There was an echo of that in the press comment at the time and that it was a way of rectifying injustice. I do not believe that that was the case then, nor do I believe that the amendment would send out that unwelcome message now.

I am grateful to the noble Lord, Lord Thomas of Gresford, for setting out very clearly his position on the amendment, although he did give credence to some of the comments I made about the confusion that exists and the importance of public confidence. My noble friend Lady Seccombe gave some useful background and reminded us that burglary is an act of violence.

Both before and during the debate I read the statement made by the Lord Chief Justice in McInerney and Keating that the offence of burglary, even the basic standard offence, involved trauma to the victim. My noble friend Lady Seccombe is quite right to stress the importance of the offence in terms of the effect that it has on the victim. That is clearly the case.

We were greatly assisted by the noble and learned Lord, Lord Donaldson, who, once again, quite rightly reminded us of the need for public confidence in the whole system and to see this issue against the general run of guidelines.

I believe that the noble and learned Lord the Attorney-General would not misuse this power. It is a case of trusting him to exercise it—as my noble and learned friend Lord Mayhew of' Twysden put it—sparingly and with discrimination. That is the context in which I have proposed the amendment.

The Minister stated that burglary is a terrible offence. She rightly reminded us that it can have a wide range. There is no one who feels that the guidelines announced were sufficiently clear at the outset; nor indeed that they received the general public confidence. One has only to look at the words of David Blunkett, the Home Secretary, about the need for clarification—and the clarification was then welcomed. But surely it is better to have this power on the statute book, without any doubt about its application, and to trust the noble and learned Lord the Attorney-General to exercise the power sparingly and with discrimination. I regret that I did not find the Minister's explanation satisfactory. I should like to test the opinion of the Committee.

8.51 p.m.

On Question, Whether the said amendment (No. 122) shall be agreed to?

Their Lordships divided: Contents, 38; Not-Contents, 68.

Division No. 3
CONTENTS
Anelay of St Johns, B.	Lyell, L.
Attlee, E.	MacLaurin of Knebworth, L.
Blatch, B.	Mancroft, L.
Bridgeman, V.	Mar and Kellie, E.
Burnham, L.	Marlesford, L.
Carlisle of Bucklow, L.	Mayhew of Twysden, L.
Colwyn, L.	Montrose, D.
	Noakes, B.
Cope of Berkeley, L. [Teller]	Park of Monmouth, B.
Dean of Harptree, L.	Roper, L.
Donaldson of Lymington, L.	Russell, E.
Geddes, L.	Seccombe, B. [Teller]
Glenarthur, L.	Selborne, E.
Goodhart, L.	Shutt of Greetland, L.
Greaves, L.	Slynn of Hadley, L.
Harris of Richmond, B.	Thomas of Gresford, L.
Hunt of Wirral, L.	Trefgarne, L.
Hylton, L.	Wilcox, B.
Kimball, L.	Williams of Crosby, B.

NOT-CONTENTS
Ahmed, L.	Grocott, L. [Teller]
Andrews, B.	Hardy of Wath, L.
Bach, L.	Harris of Haringey, L.
Bassam of Brighton, L.	Howie of Troon, L.
Borrie, L.	Hoyle, L.
Burlison, L.	Judd, L.
Campbell-Savours, L.	Lofthouse of Pontefract, L.
Clark of Windermere, L.	Macdonald of Tradeston, L.
Crawley, B.	McIntosh of Haringey, L. [Teller]
Davies of Coity, L.
	Pitkeathley, B.
Dixon, L.	Ramsay of Cartvale, B.
Farrington of Ribbleton, B.	Rea, L.
Faulkner of Worcester, L.	Sainsbury of Turville, L.
Gale, B.	Scotland of Asthal, B.
Gilbert, L.	Stone of Blackheath, L.
Golding, B.	Thornton, B.
Goldsmith, L.	Whitaker, B.
Gould of Potternewton, B.	Winston, L.

Moved accordingly, and, on Question, Motion agreed to.

Resolved in the negative, and amendment disagreed to accordingly.

9.1 p.m.

Clause 81 [Alteration of place fixed for Crown Court trial]:

Lord Hunt of Wirral moved Amendment No. 123: Page 37, line 16, leave out "by a judge of the High Court

The noble Lord said: Clause 81 states that an application under Section 76(3) of the 1981 Act for a variation of the place fixed for Crown Court trial is no longer required to be heard in open court by a judge of the High Court. By asking for the deletion of the words, by a judge of the High Court",

I am seeking clarification.

It is undoubtedly a matter for discussion as to whether a judge of the High Court might want to be much more impartial about whether the case should be transferred, whereas a circuit judge might want to keep hold of the business. It would be interesting to know the background to the precise wording which has been put forward by the Government and I am seeking clarification. I beg to move.

Lord Carlisle of Bucklow

I ask in total ignorance, I am afraid, but is the present position that the application to transfer a case has to be heard by a High Court judge? I thought it could be heard by a judge at the Old Bailey or a recorder. I had not realised that it required a High Court judge. I thought the power was wider. There is no need for a High Court judge if it is obviously for the convenience of witnesses that matters should be transferred. I am surprised to hear it is necessary at the moment.

Lord Bassam of Brighton

I think what the noble Lord, Lord Carlisle, described is currently the situation. I want to go on to clarify the point the noble Lord, Lord Hunt of Wirral, raised and persuade him to withdraw his amendment.

Clause 81 amends some of the provisions of Section 76 of the Supreme Court Act 1981. That measure deals with alterations to the place of trial in the Crown Court. It currently requires that any application by the prosecution or defence to change the place of trial must be dealt with in open court by a judge of the High Court. That is often difficult because not all Crown Court centres are visited by High Court judges, and many that are do not always have such a judge in residence. So when considering this issue, the Government not only decided that it is no longer necessary for High Court judges to deal with these issues, but recognised that the applications can often be dealt with by a Crown Court judge without the need for a hearing in open court.

It had been our intention to amend subsection (3) of Section 76 in the manner currently set out and to repeal subsection (4), which contains the requirement for a hearing in open court. Unfortunately, through an oversight, that repeal was not made in the Bill as currently before the Committee. An amendment to Schedule 7, which deals with repeals, will therefore be tabled at Report stage by the Government to give effect to that intention. I trust that the Committee will recognise the need for such an amendment when the time comes to debate it. If that amendment is accepted, the effect will be that applications for alteration to the place of trial can be dealt with by any judge of the Crown Court and, where appropriate, without the need for a hearing in open court.

We are grateful to the noble Lord, Lord Hunt of Wirral, for pointing out that omission, which we intend to address. I therefore hope that he will feel able to withdraw the amendment.

Lord Carlisle of Bucklow

I should like to return to the point. I have to my knowledge been involved in an application which, although heard by a High Court judge, was heard in chambers. The case involved a major drugs case which was moved from Manchester, I think, to Newcastle. Although I suppose that it might have been put right by a formal application in court thereafter, the whole of the argument took place in chambers without the parties being present.

Lord Bassam of Brighton

It is hard for me to comment on the particular case, but I am grateful to the noble Lord, Lord Carlisle, for explaining some of the circumstances in which it occurred. We are addressing the issue in this way to obviate the need for such a device. I hope that it will provide a practical solution to the problem that he has identified.

Lord Donaldson of Lymington

I should like to raise a point of construction. A double condition is being got rid of: first, that the application has to be heard in open court and secondly that it be heard by a judge of' the High Court. If one just leaves it at that, subject to the amendments which the Minister said he will make—which I frankly do not understand; that is my fault, not his—one is left with the position that the High Court judge is no longer necessary or the open court is no longer necessary. However, it is certainly left open that one or the other is necessary. It seems a patent ambiguity which ought to be cleared up.

Lord Bassam of Brighton

I am grateful to the noble and learned Lord for his intervention. We will of course take careful cognisance of his remarks in framing our amendment. We think that we have a solution to the specific problem.

Lord Borrie

I am trying to help the Minister. Does he mean that the word "by" should be preceded by -or", so that it is no longer necessary to be heard either in open court or by a judge of the High Court?

Lord Bassam of Brighton

I think that that is the case.

Lord Hunt of Wirral

We are all deeply indebted to the noble Lord, Lord Borrie, for having come up with a solution which needs to be considered. However, I believe that the noble and learned Lord, Lord Donaldson, and my noble friend Lord Carlisle have highlighted a problem for the Government. I am not quite sure that they are there yet, but no doubt this will run and run. If the Minister wishes to give further clarification, I am perfectly willing to give him the opportunity to do so.

Lord Bassam of Brighton

I have listened to the advice given in the Committee and to the advice of my noble friend Lady Scotland. I shall seek to bring back a wording which takes on board the points that have been raised so that we can reflect accurately what we need to achieve. Not being a technician in these matters, I am content to leave the matter there.

Lord Hunt of Wirral

In those circumstances I shall await developments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 81 agreed to.

Clause 82 agreed to.

Clause 83 [Prosecution appeals from Court of Appeal]:

Lord Goodhart moved Amendment No. 124: Page 38, line 42, leave out "by the defendant,

The noble Lord said: In moving Amendment No. 124, I wish to speak also to Amendments Nos. 125 to 129 inclusive as the group raises a single point.

At present, under the Criminal Appeal Act 1968, after the Court of Appeal has given a decision, the unsuccessful party has 14 days in which to apply to the Court of Appeal for leave to take the appeal to the House of Lords. If that application is turned down, the unsuccessful party has a further 14 days in which to apply to your Lordships' House for leave to appeal.

If the defendant is the unsuccessful party, he can apply for leave to appeal out of time. But, if the prosecutor is the unsuccessful party in the Court of Appeal, there is no possibility of an ex tension of time. So if the prosecutor fails to appeal within the due time, there is no possibility of an appeal.

Clause 83 maintains the present position so far as an unsuccessful defendant is concerned; that is, the defendant has 14 days to apply to the Court of Appeal for leave to appeal to your Lordships'. House and, if that application is turned down, a further 14 days to apply to your Lordships' House itself, and continues to have a right to apply for leave to appeal out of time. However, Clause 83 extends to 28 days the time allowed to a prosecutor who has been unsuccessful before the Court of Appeal to appeal to your Lordships' House.

The Joint Committee on Human Rights in its first report of this Session asked the Lord Chancellor why he proposed to introduce this inequality into the system of appeals and why he thought that it was compatible with Article 6 of the European Convention on Human Rights. The Government responded that the defendant can apply for leave to appeal out of time but that the prosecutor cannot. The Government considered giving a prosecutor a right to apply for leave to appeal out of time but decided that it would be unfair to the defendant to allow the prosecution to do so on the ground that in that case the defendant would always be, at least in theory, potentially at risk of the prosecutor seeking to reopen the case. The Government therefore considered that the 28-day period for the prosecution being longer than that allowed to the defendant was balanced by the defendant's right to apply for leave out of time.

The Joint Committee on Human Rights was not satisfied with that answer and suggested in a subsequent report either that the defence should be allowed 28 days as of right or that the prosecutor should continue to have 14 days, with power to apply for leave to appeal out of time during a further 14 days, but not thereafter.

The position taken by the Joint Committee on Human Rights seems in the circumstances entirely fair and proper. Therefore, I would like to ask whether the Government are prepared to accept its further proposals. If not, why not? I beg to move.

9.15 p.m.

Lord Bassam of Brighton

Sir Robin Auld, in his review of the criminal courts, recognised the disparity addressed by the noble Lord, Lord Goodhart. Sir Robin recommended that Section 34(2) of the Criminal Appeal Act be amended to empower the House of Lords and the Court of Appeal to extend the time within which the prosecution may apply for leave to appeal, as in the case of a defendant.

The conclusion reached was that an open-ended provision for the prosecution to extend the time to seek leave was undesirable, because it would leave the defendant with the prospect of having his conviction reinstated at any time in future. The issue has been discussed at considerable length with both the senior judiciary and the Registrar of Criminal Appeals. The state of affairs is not ideal. A defendant who has been successful in the Court of Appeal should be entitled to know for certain, at the end of a specified period, whether the decision in his favour is to be challenged or not.

Therefore, rather than create an open-ended provision for extension of time, the policy is simply to extend the time limit within which the prosecution may apply for leave to appeal to the House of Lords from 14 to 28 days. We are not taking anything away from the defence, as it retains the right to apply to the House of Lords or the Court of Appeal at any time to extend the time in which to make an application beyond the 14-day limit. The Bill as drafted provides for that.

We thank the noble Lord, Lord Goodhart, for his very considered view. After consultation, we intend to amend the wording of Clause 83 to address his concerns and those of the Joint Committee on Human Rights whose fourth report was published last week. As a consequence I rather hope that he will feel able to withdraw his amendment so that we can table an amendment that will satisfy the concern that he has raised.

Lord Hunt of Wirral

I have tabled a very similar amendment, which also seeks to overcome the disparity. It may be for the convenience of the House if I indicate that I do not intend to move it, in view of the words of the Minister.

Lord Goodhart

I am most grateful but, before I beg leave to withdraw the amendment, I would like to ask whether the Government have decided how they will amend Clause 83. Which option proposed by the Joint Committee will they take up, or will they propose something entirely different?

Lord Bassam of Brighton

We intend to consult some more on the matter. I am happy to involve the noble Lord and noble Lords from the Opposition in the product of that consultation. I hope that that satisfies him. We want to deal with the concerns raised and ensure that we have something that works precisely to do the job and protect the further rights of defendants.

Lord Goodhart

In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 125 to 130 not moved.]

Clause 83 agreed to.

Clauses 84 and 85 agreed to.

Clause 86 [Defence Council appeals from Courts-Martial Appeal Court]:

[Amendment No. 131 not moved.]

Clause 86 agreed to.

Clause 87 [Fees]:

Lord Hunt of Wirral moved Amendment No. 132: Page 41, line 26, at end insert— ( ) In prescribing fees payable under subsection (1), the Lord Chancellor shall have regard to the need to facilitate access to justice.

The noble Lord said: We come to one of the most important parts of the Bill, which received a great deal of attention at Second Reading; namely, Clause 87, which concerns fees. We were treated to an outstanding speech from the noble and learned Lord the Lord Chief Justice, who devoted most of his Second Reading speech to dealing with Clause 87. He rightly reminded us that this clause changes the role of the senior judiciary in relation to the setting of court fees.

I have had the benefit of looking at the Civil Justice Council's paper on full costs recovery produced by its fees sub-committee. It makes this very clear statement: The Civil Justice Council has given detailed consideration to the Government's policy of raising almost the full cost of the civil court costs through fees levied on users, and concluded that this policy is not consistent with its aim of ensuring access to justice".

The fees sub-committee continued in these terms: The policy is both wrong in principle and unfair in practice and has resulted in significant under funding of the courts which is in serious danger of undermining the civil justice reforms. The Council calls on the Government to abandon this objective".

There could not be a clearer statement. Therefore, I hope that noble Lords will understand the importance of the amendment, which seeks to insert at the end of line 26, page 41, the words: In prescribing fees payable under subsection (1), the Lord Chancellor shall have regard to the need to facilitate access to justice".

In an earlier debate, I warned the Minister that I would seek to quote not only the noble and learned Lord the Lord Chief Justice but also the noble and learned Lord the Master of the Rolls. I pointed out that I am not aware of the precise nature of the various precedents, but I believe that it was unusual for the Master of the Rolls, the noble and learned Lord, Lord Phillips of Worth Matravers, to agree to speak to Jeremy Paxman on "Newsnight" about the civil justice system. In that interview, when asked by Mr Paxman: What is your assessment of the shape [the civil justice system] is in'?",

the noble and learned Lord the Master of the Rolls replied, saying two different things. He said: It is creaking at the seams because of lack of resources. The Treasury has introduced, without any parliamentary debate or discussion, a complete change. Yes, it is the job of the state to provide a health service and to provide education. It is not the job of the state to provide a civil justice system. The litigant has to pay

so say the Government— in court fees for the cost of maintaining these buildings and for the judges".

The noble and learned Lord the Master of the Rolls continued: I don't know any other country where this full cost recovery is imposed. It has dire consequences for an effective civil justice system. The other limb of this is that we are desperately needing to reform our structure. It is part of the same picture. Today, people don't do everything on paper. If they do it's inefficient and takes a long time. We have to modernise and the court service had prepared a magnificent modernisation programme. All it needed was the funding, and in this spending round we haven't had it. If we don't modernise, the system is going to fall apart".

In line with the tenor of the interview, the BBC headed the transcript with the words, "Courts Crumbling". I believe that it is pretty unusual for the noble and learned Lord the Master of the Rolls to be so forthright. Therefore, on what is the first parliamentary occasion to express views on the policy imposed by Her Majesty's Treasury, I believe it is right that we should reflect for a moment and question whether this is the right way forward.

The noble and learned Lord the Lord Chief Justice reminded us that historically the cost of court accommodation and the salaries and pensions of judges was borne by the state. It was always accepted that the rest of the running costs would be borne by litigants in the form of fees. We all know the history because the noble and learned Lord the Lord Chief Justice set out the background to this present debate.

I hope that I do not have to remind noble Lords of the words used by the noble and learned Lord the Lord Chief Justice when he said that the present accommodation of the commercial court is a disgrace. That was his word, "disgrace". He stated: Throughout England and Wales, courts are deprived of the technology which has been repeatedly promised and which should be at the heart of the civil justice reforms".

Noble Lords will remember that we are talking about the architect of the civil justice reforms. He went on to say: Those courts are struggling to provide an adequate service, relying on the loyalty of the judiciary and the staff …It is forgotten that at stake can be a member of the public's home, a widow's damages or a citizen's human rights".

The noble and learned Lord the Lord Chief Justice concluded: That position is not tolerable".—[Official Report; 9/12/02; col. 28.]

Looking back to a rather special day, I asked a very special Question in this House. On 26th April 1999 I asked the noble and learned Lord the Lord Chancellor whether he considered that all necessary systems and resources were in place for the introduction that day of the civil justice reforms of the noble and learned Lord, Lord Woolf. That was on the day they were introduced; namely, 26th April 1999. In seeking to assure us that all the necessary systems were in place, the noble and learned Lord the Lord Chancellor admitted that the IT system was not quite ready. He stated: I expect a full administrative IT system to be in place during 2000".—[Official Report, 26/4/99; col. 5.]

That was the following year. I regret to inform noble Lords that we are still waiting for that full administrative IT system. How right are the noble and learned Lord the Lord Chief Justice and indeed the Master of the Rolls in demonstrating by what in the circumstances is moderate language how concerned they are that the whole purpose of the access to justice reforms will be lost.

On the previous Committee day I reminded the Minister of the words of the noble Baroness, Lady Scotland of Asthal, in reply to the Second Reading debate. Referring to the Lord Chief Justice, she stated: The noble and learned Lord, with his usual precision, has highlighted a number of issues that I am sure will excite our interest for some time".

She continued with that memorable phrase that I have quoted to her before: I dare not go further".—[Official Report, 9/12/02; col. 83.]

I gave the Minister the opportunity to go further on a previous occasion and she said that she would resist the temptation.

In the light of Amendment No. 132, I hope that the Minister will rise to reassure us that the access to justice reforms will go ahead with the resources that they so desperately need, in particular so that there will be continued facilitation of access to justice. That is so important and is right at the heart of the widely welcomed changes that have taken place. Indeed, some would say that provided those changes are implemented they will be the envy of the rest of the world. If we get civil justice properly resourced, we need not look back in the way that we have been encouraged to by a number of very senior members of the judiciary and the Civil Justice Council, because we will be able to look forward with confidence and plan for the future. I beg to move.

9.30 p.m

Lord Goodhart

I would find it difficult to agree more with what the noble Lord, Lord Hunt of Wirral, said. The imposition of heavy court fees has acted as a serious deterrent to access to justice. That is totally wrong. It is the duty of the state to provide a system of justice. While it has long been accepted that litigants should pay something towards the cost of maintaining the courts, it has never, until recently, been proposed that they should pay the whole of the costs.

In the commercial court, in which most of the litigation is by wealthy corporations, there is a strong case for covering the full cost of the litigation through fees. That certainly does not apply to the ordinary civil courts in which actions relating to personal injuries, employment rights, housing and so on are contested. Therefore, I entirely support the noble Lord, Lord Hunt of Wirral.

I see a certain step forward. It may be useful if I speak to my Amendment No. 146, which is far down the list. It relates to the orders made by the Lord Chancellor under Clause 97 regarding prescribing the fees. I remember two or three years ago an order was made by the Lord Chancellor which very substantially increased the fees. I was deeply concerned about it at the time. I think that it has done a great deal of damage.

The order appeared in the minute in the list of statutory instruments to receive the negative resolution procedure. I was therefore proposing to pray against it. I was then told that that was a mistake. It should not have appeared in the negative resolution list because it was an order that simply had to be laid before Parliament. There was no chance of any prayer against it. That was deeply unfair because a very important order was subject to no parliamentary process at all.

Clause 97(4)(c) proposes that a statutory instrument containing, an order under section 87…is to be laid before Parliament after being made". In other words, it is not subject to any form of parliamentary control.

However, I also understand that the Committee on Delegated Powers and Regulatory Reform has objected to there being no parliamentary control and therefore recommended that an order prescribing fees under Clause 87 should be subject to the negative resolution procedure and could be prayed against. I also understand that the Government accepted that proposal in their response, which advances the situation somewhat, in that changes in fee orders will now be subjected to a degree of parliamentary control and, if they are thought to be excessive, can be prayed against.

So, although I entirely agree with everything that the noble Lord, Lord Hunt, said, I also accept that some progress—not necessarily adequate—has been made towards solving the problem.

Lord Borrie

In the course of his speech, the noble Lord, Lord Hunt of Wirral, made some powerful and well-argued points. When he cited the Lord Chief Justice and the Master of the Rolls at some length about their concern for adequate resources for civil litigation, I could not disagree with him. How could I disagree with the words of such eminent people as the heads of civil justice in this country? However, I am not entirely sure of the direct connection between that and what we are discussing in Clause 87, which is concerned with the recovery of fees from litigants.

I noticed that the noble Lord, Lord Goodhart, distinguished between commercial and other litigation. He rightly said that commercial litigation is often engaged in by wealthy corporations, which may well be able appropriately to afford the principle of full recovery of costs. Why should we disagree with him? Many may say—I hope that this does not sound anti-foreign—that because our justice system is so highly regarded abroad by foreign corporations, they come to this country and may in important litigation spend weeks or months using the access to justice that we provide paying only a proportion of the costs incurred.

As for other civil litigation, I well recognise the phrase, "access to justice", which the noble Lord, Lord Hunt, wants to incorporate by his amendment. However, the Lord Chief Justice, the noble and learned Lord, Lord Woolf, would be the first to say—he has said it many times—that access to justice does not necessarily mean the right to what I may call the Rolls Royce type of justice available in the High Court. However, he has many times referred to the importance of the access for the ordinary people of this country to the small claims system in the county courts, to the ombudsman schemes and to all the other alternative dispute resolution procedures. They are so important in practice for ordinary members of the public.

Let us realise that the Lord Chancellor's powers are hedged about throughout by the need to consult the heads of the judiciary, who are listed in the clause. So although the passion and accuracy of the comments of the noble Lord, Lord Hunt, about the need for adequate resources was important, we must distinguish between that and the question of fees provisions in the clause.

Lord Donaldson of Lymington

I welcome the fact that the heads of division no longer have to concur in fees orders but are only consulted. I frankly admit that I left my job more than 10 years ago. But, even then, I was embarrassed, and I dare say that my colleagues shared the feeling, at cavilling at proposals to increase fees on perfectly respectable grounds, when, after all, the provision of money and resources was the responsibility of the Government, not the judiciary. To that extent, I welcome the change that the Bill would make.

I echo the remarks of the noble Lord, Lord Goodhart, about splitting the commercial court from the rest of the civil justice system. I was a presiding judge in the commercial court for some years. It is fundamentally different from any other court. I believe that over 50 per cent of all cases tried in the commercial court involve at least one foreign party. There may be a case for the commercial court being under-remunerated by its users on the grounds that it is an export industry that we ought to subsidise—it is arguable. But, apart from that, I see no reason why the sort of cases dealt with in the commercial court should not command fees amounting to a full recovery at least. I would not mind if they went beyond that, and I do not think that it would worry the litigants.

I had an interesting experience during the period when Lord Elwyn-Jones was the Lord Chancellor—forgive me for raising the matter, but it is illustrative. There was a shortage of court space for the commercial court, so I floated the idea that litigants might provide their own court at their own expense, and that the judge should go there and deal with the case accordingly. I got as far as getting agreement to those arrangements in one case. Solicitors hired the Reform Club—do not know whether that was a good idea—for which the outlay was some £5,000, which was quite a lot of money in those days. When Lord Elwyn-Jones heard about the arrangement, he was appalled. He said that the arrangements involved private enterprise in a governmental service. He went further, ordering the solicitors to repay the Reform Club the £5,000 and to let the matter take its own course in the ordinary courts. I think that that was wholly absurd. But, regardless of whether it was absurd, it is interesting that the litigants were perfectly happy with the arrangements. They had the alternative option of going to arbitration, which would have cost them an arm and a leg more.

Let us by all means treat that as a special case. But it is overlooked that, in every society that I have ever heard of, justice came before education, health and almost anything else. I do not want to overstate the case because although it is factually true and the quality of justice may have been a bit dodgy, which it is in more punitive societies, the rationale was different, happily, from that which obtains at present. It was that, if the monarch, government or whoever did not provide a system for resolving disputes, the citizenry would take the matter into their own hands. That did not bother the monarchs in the least. What bothered them was that that would lead to the mutilation of possible soldiers for their forces. I accept that that rationale does not exist at present. It is a pity that it does not. from the point of view of providing better access to justice. But the provision of justice is still fundamental, even if the rationale has changed. I do not think that the Government recognise that.

The last point that I want to make is peripheral but, I think, important. The noble Baroness has been taunted for failing to respond to arguments that are plainly right. I agree: she does not respond to arguments that are plainly right. When she says, "I dare not do so", she is reflecting the fact that Ministers, particularly junior Ministers—I do not say that pejoratively, just to point out that they are not the Secretary of State or equivalent—are hedged in by the necessity to appear as advocates. rather than being able to express their own view. We ought to accept that the Minister is here as an advocate. There is no reason why she should not be told that the arguments that she puts forward as an advocate are nonsense; the only thing that we ought not to do is suggest that she does not realise that they are nonsense.

9.45 p.m.

Lord Carlisle of Bucklow

The only point that I wanted to make follows from what the noble and learned Lord, Lord Donaldson of Lymington, has just said in his powerful speech. The noble Lord, Lord Borrie, limited the scope of his remarks to the commercial court. What the noble and learned Lord, Lord Donaldson of Lymington, said applied a great deal to the commercial court and the fact that full fees should be paid in that court to cover costs.

As I understand it—I will be corrected, if I am wrong—the amendment goes wider than the commercial court. The amendment says: In prescribing fees payable under subsection (1), the Lord Chancellor shall have regard to the need to facilitate access to justice". Subsection (1) deals not only with the supreme court but with the county court and the magistrates' court. I would have thought that the argument made by my noble friend was unanswerable, certainly so far as concerns the county court. If, as the noble and learned Lord, Lord Donaldson of Lymington, said, we should preserve the right of access to justice in this country, the Lord Chancellor should take account, when deciding fees at that level, of the right of access. He should not impose fees at a level that refuses justice to people who might otherwise go to the county court.

Baroness Scotland of Asthal

I have found the debate stimulating and worthwhile. In particular, I thank the noble and learned Lord, Lord Donaldson of Lymington, for his understanding. The noble Lord, Lord Hunt of Wirral, made a powerful case for the importance of further resources. He also made a powerful case as to why we should listen to the quotations from the senior judiciary. I say to the noble Lord, in what are now famous terms, "You could say that. I couldn't possibly comment".

I say respectfully that, although we have ranged widely, we should come back to the amendment. The noble Lord, Lord Goodhart, and my noble friend Lord Borrie were, in their separate ways, right. The noble Lord, Lord Goodhart, made a point about negative resolution. I am pleased to be able to say at this early stage that his forecast of the Government's position on that matter is right. We will come to it later in the Bill, and we will, in principle, accept the point and table amendments in due course.

The amendment is not necessary. I say respectfully that the words spoken by my noble friend Lord Borrie were well said. He spoke about the distinction between needing full cost recovery in certain circumstances, where it is merited, and the need to bear in mind the needs of the litigant in other cases. The overarching concern of the Lord Chancellor is to ensure access to justice. There is a system of exemptions, remissions and guarantees for less well-off litigants relating to the payment of civil court fees.

When the noble and learned Lord the Lord Chancellor came to office, automatic exemption was confined in civil, non-family proceedings to recipients of income support. Indeed, the previous administration had attempted to remove even that in supreme court proceedings. In November 1997, the noble and learned Lord the Lord Chancellor extended automatic exemption to include income-based jobseekers allowance, family credit and disability working allowance. In September 1999, he updated this to include recipients of working families' tax credit and disabled person's tax credit at the same level. In March 2000, he made provision for refunds in particular limited circumstances where a litigant might be under pressure to pay a fee because time was running out to make a claim and where the court was currently unable to take account of those fees.

Lord Goodhart

I am grateful to the Minister for giving way. Does she agree that making receipt of benefits a passport to the waiver of fees is one of the problems we face in this country? Those who are just above the benefit limits are faced with the full burden of the fees, although they too are not, in practice, able to afford them.

Baroness Scotland of Asthal

It will very much depend on the nature of the litigation in which those individuals are involved. In some fields, legal aid will be available; in others, there is a small claims court where the fees are limited and small. In respect of others, there is arbitration; we have made legal aid available, for instance, for mediation. The levels in relation to legal help have risen. So we have tried to look at the issue in the round to ensure that the money we expend on provision for legal aid is targeted on the social exclusion of those who are most in need and that those in the bracket just above have a better opportunity to obtain legal help.

Members of the Committee will also know that the Government are investing a great deal of time and effort in encouraging alternative dispute resolution. We recognise from the research that court-based solutions are often the least successful in that they provide not the highest level of satisfaction because in our adversarial system one party must win. The corollary is that the other party must lose. There will always be 50 per cent who, for one reason or another, are likely not to be satisfied with the result.

All of that must be seen in the round. It is clear that we need significant sums to be made available to enable the courts to be modernised in a way that is proper. But full cost recovery has been with us for a long time. I know it is nice to think it is a recent invention, but, as with so many issues, when one looks back one sees that there it was in days of yore. It has been with us in one way or another since the County Court Act 1888. Fees have always been charged to litigants in the civil courts. Originally, they were paid to the judges of the court, who retained them personally—

Lord Donaldson of Lymington

Will the Minister consider whether a true view is that it has always been an aspiration? Certainly, we were nowhere within miles of it when I was concerned.

Baroness Scotland of Asthal

We could probably enter into a long historical debate as to when there was full-cost recovery. When judges pocketed the money themselves and were paid directly, one would say that that was full-cost recovery, because if they did not get the money, they did not eat—

Lord Donaldson of Lymington

The Master of the Rolls was one of the greatest beneficiaries.

Baroness Scotland of Asthal

And I dare say that some would like those days to roll again, but they have not. We could go back in history, but what do we know? We know that full-cost recovery is appropriate particularly in relation to the example given by the noble Lord, Lord Carlisle, and others in relation to the commercial courts. The noble and learned Lord, Lord Donaldson, rightly said that, because our courts are used so much by international commercial litigants, we provide an exemplary service—some would say the best in the world—in relation to dispute resolution heard judicially in our courts. Therefore, we must use those opportunities to try to maximise the income brought into the system so that we can have state of the art courts.

Of course I understand the anxieties that have been expressed about full cost recovery and how from time to time it may impact negatively on various sections, but I say only that if one looks at what the noble and learned Lord the Lord Chancellor has done in relation to fees, it will be clear that he has been assiduous in trying to ensure that the disadvantaged are cushioned in relation to fees and that there is a discretion in terms of how they operate.

Lord Thomas of Gresford

Can the Minister give me the bottom line with respect to fees? Never mind the history; is the Lord Chancellor now going to set a level of fees which will balance the books?

Baroness Scotland of Asthal

The noble and learned Lord will set fees from time to time based on the circumstances that then prevail. It would be wonderful if I could give noble Lords a hard and fast rule, but I daresay what would happen then would be that a noble Lord would ask, "What if X changes, and X plus Y equals Z and not C?".

If I am honest and straightforward, as I have always tended to be with noble Lords—I know no other way—I have to tell noble Lords how I see the matter in fact and not how we would like it to be.

Lord Hunt of Wirral

I am grateful to the Minister. I believe that the noble Lord, Lord Thomas of Gresford, along with many other noble Lords who have participated in the debate, has put a fundamental question. As noble Lords understand the position, the Government have recently announced, and Her Majesty's Treasury has made clear, that the policy in levying fees will now be for full cost recovery in all actions. We can forget for a moment the commercial court. Is that or is it not still the Government's policy?

Baroness Scotland of Asthal

It is full cost recovery, but as I have tried to tell noble Lords, the noble and learned Lord the Lord Chancellor has taken into account the categories of persons against whom court fees should not be recovered in full. Furthermore, I have sought to go through the various categories which have been included. Those categories will be extended from time to time. As benefits and other levels change, I daresay that that will be reflected in the levels of fees and remissions of fees that will be granted.

However, if the noble Lord was to ask whether there will be full cost recovery in each case, then of course that cannot be right. That is because litigants who are financially disadvantaged or who belong to a group that is particularly vulnerable will be cushioned in order to enable them to bring their cases in accordance with what is proper.

Lord Thomas of Gresford

Is the Minister saying that the paying litigants will subsidise those who cannot pay; that is, all the exceptions to which the noble Baroness has referred?

Baroness Scotland of Asthal

Fees will be levied so as to enable full cost recovery to be rendered wherever possible. I cannot give the noble Lord a definitive answer to the question of what proportion, if any, of cushioning may have to be provided from time to time by the Lord Chancellor from the budget.

While I cannot give the noble Lord an answer today, I shall certainly be happy to write to him if I can provide a fuller response. However, I have no better answer to give from the Dispatch Box.

Lord Hunt of Wirral

I commend the noble Baroness for being absolutely clear with the Committee; namely, that full cost recovery is now the policy of the Government. It is the policy that the Civil Justice Council has said should be abandoned. The council has also asked a question that I shall put to the Minister: can she name another major English-speaking common law jurisdiction or any other European jurisdiction where full cost recovery as she has proposed for the United Kingdom is carried out as a matter of practice?

Baroness Scotland of Asthal

I am not able to name other jurisdictions, but I shall certainly write to the noble Lord. I have tried to make it clear that I do not accept the premise. I have also sought to make it clear that the specific groups to be cushioned will remain cushioned. No doubt noble Lords will say that currently we do not have a policy in relation to full cost recovery because we have made exceptions for those groups of people whom we have identified as being vulnerable and thus in need of assistance and cushioning.

10 p.m.

Lord Hunt of Wirral

I am grateful to the Committee for obtaining from the Minister clarification of the Government's policy. Although the noble Baroness may seek comfort by putting the matter into a historical context, noble Lords are now aware that there is to be a new policy of full cost recovery. That is why there has been such an outcry from senior members of the judiciary; that is why we heard from the Lord Chief Justice on Second Reading; why we heard from the Master of the Rolls on "Newsnight"; and why we have heard from the Civil Justice Council. We are not talking about the commercial court—we could engage in a debate about fees in the commercial court—but about civil court fees generally.

The Minister will have thought long and hard about these matters and the noble and learned Lord, Lord Donaldson, paid tribute to her for that. If I ever wanted a plea in mitigation I could have gone to no one better than the noble and learned Lord. He gave a strong plea in mitigation on behalf of the Minister, who has to try to sell this policy.

Baroness Scotland of Asthal

The noble Lord keeps repeating that I said "full cost recovery". However, I have made it plain that the LCD does not recover full costs for civil fees. There are exemptions and omission arrangements for those who are not legally aided and who would suffer hardship in paying fees. The subsidies for family proceedings in, for example, adoption and domestic violence cases, together with these provisions, act to protect access to justice. So, although the noble Lord says "full cost recovery in relation to all", this is not a new policy. Nor is it correct to say that we recover full costs of civil fees. We do not do so because of those exceptions.

Lord Carlisle of Bucklow

This is rather like having an old age person's pass. If you get an OAP's pass you pay less fees irrespective of your financial position. Surely we want the Government to accept that fees should be set at an affordable level for those who do not have the advantage of total avoidance through having an OAP's pass.

Baroness Scotland of Asthal

But it is not targeted by virtue of one criteria. The whole point, I emphasise, is that those who can pay should pay, and should pay in full. Those who cannot pay, or who are vulnerable, or who fall into a special category of vulnerability by virtue of the nature of the case—for example, those involved in family and adoption cases—should pay at a lower, subsidised rate. So those who cannot pay will be assisted; those who can pay will be made to do so.

Lord Thomas of Gresford

I shall have a third shot. Will those who can pay be paying for those who cannot? That is the issue.

Lord Hunt of Wirral

The Committee will notice that the Minister does not rise to answer that fundamental point.

Baroness Scotland of Asthal

I have answered it five times. I do not believe that repetition brings clarity.

Lord Hunt of Wirral

I believe that Members of the Committee do not accept what the Minister has just said. We shall not inquire behind the veiled curtain as to what happened as regards Her Majesty's Treasury. Almost certainly, there would have been a huge debate between the Lord Chancellor's Department and the Treasury. I know that the Minister cannot divulge to us the way in which she undoubtedly fought our case for us behind the scenes and lost.

When I gave way to the Minister rather than her giving way to me, I was merely commending the noble and learned Lord, Lord Donaldson, on his plea in mitigation. But a plea in mitigation is based on the premise that the Minister is guilty. I give the noble Baroness the opportunity of putting everything right. She has already said that the Lord Chancellor has a duty to facilitate access to justice. That is all that the amendment seeks to do. I hoped that she might accept it. I should like to test the opinion of the Committee.

10.5 p.m.

On Question, Whether the said amendment (No. 132) shall be agreed to?

Their Lordships divided: Contents, 37; Non-Contents, 36.

Resolved in the affirmative, and amendment agreed to accordingly.

Lord Bassam of Brighton

I beg to move that the House do now resume.

House resumed.

House adjourned at sixteen minutes past ten o'clock.