§ 3.8 p.m.
§ The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal)My Lords, I beg to move that the Bill be now further considered on Report.
§ Moved, That the Bill be further considered on Report.—(Baroness Scotland of Asthal.)
§ On Question, Motion agreed to.
§ Clause 67 [Process for making Criminal Procedure Rules]:
§ Lord Goodhartmoved Amendment No. 118:
Page 31. line 17, leave out "disallow or alter" and insert "or disallowThe noble Lord said: My Lords, I shall speak slowly for the first minute or two to allow noble Lords to make their exit before we get on to this fascinating amendment. I move the amendment only in order to enable myself to speak to it because I am satisfied with the government amendments grouped with it and which render the amendments standing in our names unnecessary.This group of amendments deals with an issue that caused us some concern at earlier stages of the Bill. For a long time, there has been a Civil Procedure Rules Committee, which drafts the rules of court that the Lord Chancellor may approve or disapprove. The Lord Chancellor cannot at present make rules or alter draft rules submitted by the Civil Procedure Rules Committee. If the Lord Chancellor does not like the draft, he can send it back to the committee for further consideration but he cannot substitute his own version.
I should add that in the past the Lord Chancellor had the power to alter rules that were submitted to him for approval in the case of the county court rules, but there is no longer a separate body of county court rules; that power has not existed for some years.
In addition to the Civil Procedure Rules Committee, which has existed for many years, the Bill provides for a new criminal procedure rule committee and a new family procedure rule committee. That is undoubtedly a sensible step which we wholly endorse, but in all three of those committees the Lord Chancellor is now given power to alter draft rules put to him by the procedure committee. He is required to consult the committee before altering those rules, but the committee has no veto.
It is of course a limited power. The Lord Chancellor can alter only drafts put by the committee; he cannot, under the guise of claiming to do so, rewrite the rule book. The power is therefore to some extent constrained. But we are concerned that in respect of the High Court and the Crown Court. the Lord 13 Chancellor is for the first time being given power to override the committee. We therefore tabled amendments in Committee to remove the Lord Chancellor's power to alter draft rules submitted to him for approval by the three procedure committees.
The Government have come forward with a compromise solution. It is that where the Lord Chancellor exercises the power to alter rules, as opposed merely to approving rules submitted by the committees, those new rules will require the use of the affirmative resolution procedure for approval by each House of Parliament. That compromise was originally floated by me in Committee. So, not surprisingly, I welcome it and will be happy to support it.
The amendment has come forward at a late stage and the Lord Chancellor's Department sent me a suitably apologetic letter. References to the department being extremely sorry were in bold and underlined. All I can say is, "Better late than never". We are satisfied with the Government's compromise, so I shall not press the amendments in my name. However, for the purposes of debate, I beg to move.
§ The Chairman of Committees (Lord Brabazon of Tara)My Lords, I should point out that if the amendment is agreed to, I cannot call Amendments Nos. 120A or 121A.
§ Lord Hunt of WirralMy Lords, I do not believe that the Chairman of Committees will face that dilemma because I join the noble Lord, Lord Goodhart, in welcoming the government amendment. I never regret the lateness of amendments if they are in the right direction, which these clearly are. I also recognise that the Bill team will have been sorely pressed on a number of fronts. Indeed, there has been a tremendous amount of activity on the Bill, probably far more than originally envisaged, and I greatly welcome the fact that the Minister has brought these amendments forward in good time for the debate. Although we received them only last week, we have had more than sufficient time to scrutinise them.
Perhaps I may remind the noble Lord, Lord Goodhart, that the two of us were the architects of this compromise through a series of nods and winks. We eventually reached the solution which is now brought forward by the Government and I welcome that. I shared the noble Lord's disquiet about the Lord Chancellor having the power to alter rules and that disquiet remains over these three committees. However, the safeguards now built in come a considerable way to allay that disquiet and therefore it will not be necessary for me to move Amendments Nos. 121, 128 and 133. They are matched by government amendments which have the same or similar effect. I thank the Government once again.
§ 3.15 p.m.
§ Lord Clinton-DavisMy Lords, I, too, thank the Government for listening. All too often we complain that governments of all kinds are utterly deaf. This Government have not been. It does not matter that the amendments have been tabled late; the important 14 point is that they have been tabled. I thank my noble friend for the path that she and those advising her have taken.
§ Baroness Scotland of AsthalMy Lords, I thank my noble friend for those kind remarks and the helpful comments made by the noble Lords, Lord Goodhart and Lord Hunt of Wirral. I am pleased to say that in Committee on 11th February the Government listened carefully to the debate on the Lord Chancellor's power to alter rules and these government amendments are in response to your Lordships' concerns. I said on a number of occasions that one of the good things about the debates, especially in Committee, is that on all sides we have sought to listen to one another so that we can fashion measures which are fit for the purpose.
I am extremely sorry that the Government were not able to lay these amendments earlier in order to give your Lordships more time to consider them. I had hoped—and it appears to be the case—that I would be forgiven as they are in the right direction. I assure your Lordships that we tabled these amendments as soon as we were in a position to do so. They have the effect of requiring any rules made by the criminal, family or civil procedure rule committees and subsequently altered by the Lord Chancellor to be subject to the affirmative resolution procedure. Those rules which are allowed by the Lord Chancellor will follow the negative resolution procedure.
As we have comity on this issue, I do not seek to trouble the House further.
Lord RentonMy Lords, the noble Baroness has, with her usual worthiness, apologised on behalf of the Government for the considerable changes being made to the Bill at the Report stage. We make amendments at Report stage, but not on the scale of the number made to this Bill.
Recently, discussion at Third Reading has dwindled because almost everything has been done at Report stage, often after mature consideration in Committee. But as so much change has been made to the Bill at Report stage, I suggest that at Third Reading there should be a greater latitude of discussion than is now the trend.
§ Lord GoodhartMy Lords, I am grateful to the Minister for the compromise that has been arrived at. As it has been greeted with warmth from all sides of the House, I need say nothing further about it. I beg leave to withdraw the amendment
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 119 and 120 not moved.]
§ Baroness Scotland of Asthalmoved Amendment No. 120A:
Page 31, line 24, at beginning insert "Subject to subsection (7),
§ On Question, amendment agreed to.
§ [Amendment No. 121 not moved.]
15§ Baroness Scotland of Asthalmoved Amendment No. 121A:
Page 31, line 25, at end insert—(7) A statutory instrument containing rules altered by the Lord Chancellor is of no effect unless approved by a resolution of each House of Parliament before the day referred to in subsection (5)(a).
§ On Question, amendment agreed to.
§ Clause 68 [Power to amend legislation in connection with the rules]:
§ Baroness Scotland of Asthalmoved Amendment No. 122:
Page 31, line 28, leave out from first "amend" to "to" in line 29 and insert ", repeal or revoke any enactment
§ On Question, amendment agreed to.
§ Clause 70 [Family Procedure Rules]:
§ Lord Bassam of Brightonmoved Amendment No. 123:
Page 32, line 17, leave out "means family proceedings as defined by" and insert ", in relation to a court, means proceedings in that court which are family proceedings as defined by either".The noble Lord said: My Lords, this amendment is purely technical and seeks to put beyond doubt the meaning of "family proceedings" in Clause 70. By virtue of Clause 70(1), family procedure rules may be made in relation to family proceedings in the High Court, county courts and magistrates' courts. Clause 70(3) currently defines "family proceedings" as defined by:(a) section 65 of the 1980 Act",that is the Magistrates' Courts Act 1980.or(b) section 32 of the Matrimonial and Family Proceedings Act 1984".Section 65 of the Magistrates' Courts Act 1980 defines "family proceedings" in relation to magistrates' courts and Section 32 of the Matrimonial and Family Proceedings Act 1984 provides a definition in relation to county courts and the High Court. Unfortunately, these definitions are not identical. Some proceedings defined as "family proceedings" in the 1984 Act are not defined as such in the 1980 Act in magistrates' courts.Clause 70(3) intends to clarify that family procedure rules can be made about proceedings in court which are defined in either of the two sections. So, for example, family procedure rules could be made about proceedings in the magistrates' courts which although not defined as "family proceedings" in the 1980 Act are so defined in the 1984 Act.
The amendment clarifies Clause 70(3) and removes any potential ambiguity in the current drafting. I hope that that is clear to all noble Lords. I beg to move.
§ Lord Hunt of WirralMy Lords, I understand why the Minister has tabled the amendment; that is, in order to overcome an ambiguity. But I never cease to be surprised that we do not just overcome the ambiguity by setting out a clear definition of what "family proceedings" means. He has covered the ambiguity but really by filling in the 16 cracks rather than setting out a new definition, which I would have preferred. However, on that basis I am very happy with the explanation given by the Minister.
§ On Question, amendment agreed to.
§ Clause 71 [Further Provision about scope of Family Procedure Rules]:
§ Lord Bassam of Brightonmoved Amendment No. 124
Page 33, line 11, at end insert—( ) Family Procedure Rules may, instead of providing for any matter, refer to provision made or to be made about that matter by directions.The noble Lord said: My Lords, this amendment will ensure that the regime for rules of court and practice directions in the family justice system will be as close as possible to that in the civil justice system. I believe I should offer a moment of frankness here and freely admit that this government amendment has been tabled at this stage because it was overlooked when the Bill was drafted.When developing the family provisions in the Bill some trouble was taken to ensure that where appropriate the model of the civil justice system was followed as closely as possible. A similar provision to this amendment is included in the Civil Procedure Act, which allows civil procedure rules to delegate matters to be dealt with by practice directions. In order to ensure parity of approach with the civil jurisdiction and to ensure that there is both flexibility and adaptability built into the family justice system, it is necessary to introduce this provision.
It may help if I give a practical example of when it may be necessary to use this power. Part 52 of the civil procedure rules contains general rules about appeals in the civil jurisdiction. As I am sure many noble Lords will appreciate, there are many different types of appeal that can reach the courts, including not only appeals from lower courts but also appeals from tribunals and other bodies. Some of those appeals are very specialised and prior to the introduction of the civil procedure rules particular provisions had to be contained within individual rules. That is no longer the case and those matters are now dealt with in the practice direction supplementing Part 52.
The family procedure rule committee will have to be convinced that the matter is suitable for delegating to practice directions before making the necessary rule amendments to bring it into effect. We have tabled the amendment in order to permit the same degree of flexibility in the family justice system as exists within the civil justice system as a whole. I believe that it is a sensible, modernising and updating addition to the way in which the system works. I beg to move.
§ Lord GoodhartMy Lords, I raise just one short point, simply because I am aware that there has been a certain amount of misunderstanding about what is intended by the amendment. The point is that some people have read this as suggesting that the reference to directions means directions made by the Lord Chancellor. As I understand it, that is not the case, and this means practice directions in the ordinary sense of 17 the word; that is, a direction given by an appropriate judicial authority. Perhaps the Minister can confirm that that is the correct understanding of the amendment.
§ Lord Bassam of BrightonMy Lords, I am grateful to the noble Lord, Lord Goodhart, for raising that issue. As I understand it, the amendment has the effect of allowing family procedure rules to delegate matters which could be dealt with by rules to the President of the Family Division to be dealt with by practice direction. I hope that clarifies the point raised by the noble Lord. I am sure that it does.
§ On Question, amendment agreed to.
§ Clause 74 [Process for making Family Procedure Rules]:
§ [Amendments Nos. 125 to 127 not moved.]
§ Baroness Scotland of Asthalmoved Amendment No. 127A:
Page 34, line 40, at beginning insert "Subject to subsection (7):
§ On Question, amendment agreed to.
§ [Amendment No. 128 not moved].
§ Baroness Scotland of Asthalmoved Amendment No. 128A:
Page 34, line 41, at end insert—(7) A statutory instrument containing rules altered by the Lord Chancellor is of no effect unless approved by a resolution of each House of Parliament before the day referred to in subsection (5)(a).
§ On Question, amendment agreed to.
§ Clause 75 [Power to amend legislation in connection with the rules]:
§ Baroness Scotland of Asthalmoved Amendment No. 129:
Page 35. line 2, leave out from first "amend" to "to" in line 3 and insert ", repeal or revoke any enactment
§ On Question, amendment agreed to.
§ Clause 80 [Process for making Civil Procedure Rules]:
§ [Amendments Nos. 130 to 132 not moved.]
§ Baroness Scotland of Asthalmoved Amendment No. 132A:
Page 37, line 6, at beginning insert "Subject to subsection (7),
§ On Question, amendment agreed to.
§ [Amendment No. 133 not moved.]
§ Baroness Scotland of Asthalmoved Amendment No. 133A:
Page 37, line 7, at end insert—(7) A statutory instrument containing rules altered by the Lord Chancellor is of no effect unless approved by a resolution of each House of Parliament before the day referred to in subsection (5)(a)."
§ On Question, amendment agreed to.
18§ Clause 81 [Alteration of place fixed for Crown Court trial]:
§ Lord Bassam of Brightonmoved Amendment No. 134:
Page 37, line 14, at end insert "; and accordingly section 76(4) of the 1981 Act ceases to have effect.The noble Lord said: My Lords, Amendments Nos. 130 and 290 are technical amendments to ensure that Clause 81 is fully effective in removing an unnecessary and inconvenient procedure from the Crown Court. Until now, Section 76 of the Supreme Court Act 1981 has meant that if the defence or prosecution wish to apply to the Crown Court for a trial to take place at a different location of the Crown Court, the application has to be made in open court before a High Court judge. That applies even if there is not an objection.Clause 81 as amended by the Government will make it clear that it is for the court to decide on the appropriate procedure to be applied in each case of an application to change the venue. I beg to move.
§ Lord Hunt of WirralMy Lords, I do, indeed. welcome the amendment. It is a matter which I had the opportunity to raise in Committee in order to seek clarification as to whether an application under this section 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. I recall the Minister stating that Clause 81 amends some of the provisions of Section 76 of the Supreme Court Act 1981 which deals with alterations to the place of trial in the Crown Court.
The Minister stated that it had been his intention to amend Section 76(3) in the manner currently set out and to repeal subsection(4) which contains the requirement for a hearing in open court. I welcome the amendment and am grateful to the Government for tabling it.
§ On Question, amendment agreed to.
§ 3.30 p.m.
§ Clause 82 [Appeals to Court of Appeal: procedural directions]:
§ Baroness Scotland of Asthalmoved Amendment No. 135:
Page 37, line 18, at end insert—( ) In section 31A of the 1968 Act (powers of Court of Appeal under Part 1 of that Act exercisable by registrar), in subsection (2), after paragraph (c) insert—(d) to make orders under section 23(1)(a).",. and, at the end of paragraph (b), omit "and".The noble Baroness said: My Lords, Amendments Nos. 135, 136, 137, 193, 236, 270, 139, 140, 141., 142 and 271 have two aims: first, they to seek to enhance the role of the Registrar of Criminal Appeals, and, secondly, to assist in producing more streamlined and effective organisation and procedures in the Court of Appeal (Criminal Division).19 Under Section 31 A of the Criminal Appeal Act 1968 the Registrar of Criminal Appeals undertakes several judicial functions; for example, the variation of bail conditions, the issue of witness orders, grants or refusals of time extensions for appeal or leave to appeal and grant of representation for criminal proceedings in the Court of Appeal or House of Lords.
The extension of the powers of the registrar, coupled with the proposed extension of the powers of the single judge—as detailed in Clause 82—would produce a single route by which an application for a procedural direction can be made to the Court of Appeal (Criminal Division). I put the matter simply: an application for a procedural direction would be made to the Court of Appeal (Criminal Division). The registrar would then assess each application and assign it to the appropriate level—for example, either to himself, a single judge or to the full court.
Those applications with which the registrar is able to deal will be dealt with in accordance with directions issued by the Lord Chief Justice. Of course, if either the applicant or the prosecution are unhappy with the registrar's directions—or refusal to make a direction—the clause provides them with the ability to renew the application, if they so wish, to a single judge, who may either set aside, vary or confirm any of the procedural directions given by the registrar. In addition, should the applicant or prosecution so wish, they may seek a further review by the full court.
Equivalent provisions have been made for the Courts-Martial Appeal Court. It shares much of the procedure and administration of the Court of Appeal (Criminal Division). The same individual is the registrar for both courts. An equivalent amendment for the Courts-Martial Appeal Court will enable it to benefit from the efficiencies of this new procedure.
This change should allow maximum case management flexibility and make the most efficient use of judicial time and resources. I beg to move.
§ Lord GoodhartMy Lords, I understand that Amendment No. 138 is in this group. It removes what we regard as the unfortunate distinction between the time for appeal that was allowed—
§ Baroness Scotland of AsthalMy Lords, my list shows Amendment No. 138 to be in the next group. I think that it has been listed in two groups, which is rather confusing. At the moment, it is in the next group.
§ Lord GoodhartMy Lords, in that case I shall not say anything further. My copy of the groupings indicates that it is only in this group.
§ On Question, amendment agreed to.
§ Baroness Scotland of Asthalmoved Amendments Nos. 136 and 137:
Page 37, line 19, leave out subsection (2) and insert—(2) After section 31A of the 1968 Act insert—
§ "31B PROCEDURAL DIRECTIONS: POWERS OF SINGLE JUDGE AND REGISTRAR
§ (1) The power of the Court of Appeal to determine an application for procedural directions may be exercised by—
- (a) a single judge, or
- (b) the registrar.
§ (2) "Procedural directions" means directions for the efficient and effective preparation of—
- (a) an application for leave to appeal, or
- (b) an appeal,
§ to which this section applies.
§ (3) A single judge may give such procedural directions as he thinks fit—
- (a) when acting under subsection (1);
- (b) on a reference from the registrar;
- (c) of his own motion, when he is exercising, or considering whether to exercise, any power of his in relation to the application or appeal.
§ (4) The registrar may give such procedural directions as he thinks fit—
- (a) when acting under subsection (1);
- (b) of his own motion.
§ (5) This section applies to an appeal, and an application to the Court of Appeal for leave to appeal, under—
- (a) this Part,
- (b) section 9 of the Criminal Justice Act 1987, or
- (c) section 35 of the Criminal Procedure and Investigations Act 1996.
§ 31C APPEALS AGAINST PROCEDURAL DIRECTIONS
§ (1) Subsection (2) applies if a single judge gives, or refuses to give, procedural directions.
§ (2) The Court of Appeal may, on an application to it under subsection (5)—
- (a) confirm, set aside or vary any procedural directions given by the single judge. and
- (b) give such procedural directions as it thinks fit.
§ (3) Subsection (4) applies if the registrar gives, or refuses to give, procedural directions.
§ (4) A single judge may, on an application to him under subsection (5)—
- (a) confirm, set aside or vary any procedural directions given by the registrar, and
- (b) give such procedural directions as he thinks fit.
§ (5) An application under this subsection may be made by—
- (a) an appellant;
- (b) a respondent, if the directions—
- (i) relate to an application for leave to appeal and appear to need the respondent's assistance to give effect to them,
- (ii) relate to an application for leave to appeal which is to be determined by the Court of Appeal, or
- (iii) relate to an appeal.
§
(6) In this section—
appellant" includes a person who has given notice of application for leave to appeal under any of the provisions mentioned in section 31B(5);
respondent" includes a person who will be a respondent if leave to appeal is granted."
Page 38, line 25, leave out "Section 31ZA of the 1968 Act applies" and insert "Sections 31 B to 31 C of the 1968 Act apply
§ On Question, amendments agreed to.
21§ Clause 83 [Prosecution appeals from Court of. Appeal]:
§ Baroness Scotland of Asthalmoved Amendment No. 138:
Leave out Clause 83 and insert the following new Clause—
§
"EXTENSION OF TIME FOR CRIMINAL APPEALS TO HOUSE OF LORDS
(1) Amend section 2 of the Administration of Justice Act 1960 (c. 65) (applications for leave to appeal to House of Lords) as follows.
(2) In subsection (1)—
(3) After subsection (I) insert—
(1A) In subsection (I), "the relevant date" means—
- (a) the date of the decision of the court below, or
- (b) if later, the date on which that court gives reasons for its decision."
(4) Amend section 34 of the 1968 Act (applications for leave to appeal to the House of Lords) as follows.
(5) In subsection (1)—
- (a) for "fourteen" (in both places) substitute "28", and
- b) for "date of the decision of the Court" substitute "relevant date".
(6) After subsection (1) insert—
(1A) In subsection (1), "the relevant date" means—
- (a) the date of the Court of Appeal's decision, or
- (b) if later, the date on which the Court gives reasons for its decision.""
§ Lord GoodhartMy Lords, I am grateful to the Minister for tabling Amendment No. 138. It deals with a point raised originally by the Joint Committee on Human Rights and by an amendment which I moved in Committee. I am entirely happy with the current amendment.
§ On Question, amendment agreed to.
§ Clause 85 [Appeals to Courts-Martial Appeal Court: procedural directions]:
§ Baroness Scotland of Asthalmoved Amendments Nos. 139 to 142:
Page 39, line 33, leave out "(2)" and insert "(1)Page 39, line 34, at end insert—and at the end of paragraph (f), omit "and".( ) In section 36A of that Act (powers of the Appeal Court tinder Part 2 of that Act exercisable by registrar), in subsection ( 1), at the end of paragraph (b) insert "and—(c) to make orders under section 28( 1 )(a).",.and at the end of paragraph (a), omit "and".Page 39. line 35, leave out subsection (2) and insert—22(2) After section 36A of that Act insert—
§
"36B PROCEDURAL DIRECTIONS: POWERS OF SINGLE JUDGE AND REGISTRAR
(1) The power of the Appeal Court to determine an application for procedural directions may be exercised by—
(2) "Procedural directions" means directions for the efficient and effective preparation of—
under this Part.
(3) A judge of the Appeal Court may give such procedural directions as he thinks fit—
(4) The registrar may give such procedural directiors as he thinks fit—
§
36C APPEALS AGAINST PROCEDURAL DIRECTIONS
(1) Subsection (2) applies if a judge of the Appeal Court gives, or refuses to give, procedural directions.
(2) The Appeal Court may, on an application to its under subsection (5)—
(3) Subsection (4) applies if the registrar gives, or refuses to give, procedural directions.
(4) A judge of the Appeal Court may, on an application to him under subsection (5)—
(5) An application under this subsection may be made by—
Page 40, line 30, leave out "Section 36ZA of that Act applies" and insert "Sections 36B to 36C of that Act apply
§ On Question, amendments agreed to.
§ Clause 86 [Defence Council appeals from Courts-Martial Appeal Court]:
§ Baroness Scotland of Asthalmoved Amendment No. 143:
Leave out Clause 86 and insert the following new Clause—
§
"EXTENSION OF TIME FOR APPEALS FROM COURTS-MARTIAL APPEAL COURT
(1) Amend section 40 of the Courts-Martial (Appeals) Act 1968 (c. 20) (applications for leave to appeal to House of Lords) as follows.
23
(2) In subsection (1)—
(3) After subsection (1) insert—
(1A) In subsection (1). "the relevant date" means—
§ On Question, amendment agreed to.
§ Clause 87 [Fees]:
§ Lord Hunt of Wirralmoved Amendment No. 144:
Page 42, line 8, at end insert "and should only seek to recover the recurrent running costs of the courtsThe noble Lord said: My Lords, Amendment No. 144 gives us an opportunity to look again at Clause 87. As the Minister knows, the clause has caused a high level of concern among those who fear its effect on access to justice. The debate will give the noble Baroness an opportunity to give the Government's view regarding the situation so far in the spirit that we have entered into on Report. I hope she will indicate the views of both herself and her colleague on how best to take forward the system with the amendments that were made in Committee.The Minister will recall that I have always been concerned about the shadow of the Treasury hanging over this clause. Indeed, she stoutly defended her position when stating that it was her position and that she certainly was not accepting any brief from the Treasury. I was very relieved at that until I read a speech made a few days ago by Sir Hayden Phillips, Permanent Secretary at the Lord Chancellor's Department, on the 13th Denning Memorial Lecture held at International Students' House. All my fears have returned fourfold. I do not think that I am quoting Sir Hayden out of context. During the course of his speech he included the following words
I also head a Department that is not mortgaged to the bank. but like all Government Departments, mortgaged to Her Majesty's Treasury".Undoubtedly, that speech was made with a degree of humour. However, it reveals the appalling truth, which many of us have thought for some time, that the poor Minister is already in hock.On the last occasion we debated the clause, I recall that I gave the Minister the opportunity to say that she or the noble and learned Lord the Lord Chancellor would hold a meeting with the Civil Justice Council. Clause 87 has greatly exercised the council. It has given detailed consideration to the Government's policy of raising almost the full cost of the civil courts through fees levied on users and has concluded that this policy is not consistent with its aim of ensuring access to justice. The Civil Justice Council is composed of a range of very important people from all walks of life and is chaired by the Master of the Rolls. It concluded:
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.24The Council calls on the Government to abandon this objective".I hope that the Minister will come to the Civil Justice Council and give it a full exposition of how the Government intend to deal with what after all is one of their most important bodies. Although I have not yet heard that a meeting is to take place, I hope that there will he one to debate the issues raised by Clause 87. It is in that context that I speak today.I have heard certain stories emanating from the Royal Courts of Justice in the Strand. Not long ago, I heard that, unfortunately, the franking machine had broken down and that no one had the funds to mend it. I have spoken to several people in high judicial office who spent several hours not only purchasing stamps but sticking them on envelopes to overcome that problem.
I do not know whether that was an isolated occurrence, but I am also aware of promises that have been made about implementing the full information technology system in the courts, which, as the noble and learned Lord, Lord Woolf, reminded us on Second Reading, is so necessary to ensure that the civil justice reforms work. I do not know what stage we have reached in implementing that system, but I hope that it will be fully implemented soon.
So my purpose is to give the noble Baroness the opportunity to respond to those and other concerns and to reassure us about them. In that context, I have much pleasure in moving the amendment. I beg to move.
§ Lord GoodhartMy Lords, I am happy to support the amendment moved by the noble Lord, Lord Hunt of Wirral. Historically, provision of the courts has been one of the most important and long-standing responsibilities of the government. Indeed, if one goes back in history, it dates back as far as almost anything other than the provision of Armed Forces to protect the country. It is important that the provision of an effective and accessible system of justice should be regarded as one of the prime duties of any Government. There is a real danger that if provision of court services is to be financed through court fees at a level that effectively means that they are self-financing, we will end up by denying a great many people access to justice.
Some years ago, I remember the noble and learned Lord, Lord Browne-Wilkinson, advocating in a public lecture that the courts, the judiciary, should have the power to levy a precept on the Government for what was necessary to maintain the legal system in effective working order. Although that has many attractions, that is perhaps going a step too far—even though I understand that that happens in some other jurisdictions. Nevertheless, we must accept the principle that we cannot combine an accessible judicial system with something that is wholly self-financing—even setting aside the burden of legal aid. In those circumstances, the amendment has our full support.
§ 3.45 p.m.
§ Lord BorrieMy Lords, there is a fine ring to the phrase, "access to justice", and I fully endorse all the sentiments advanced by the noble Lord, Lord Goodhart. When it comes to the administration of justice for every level of society, the Labour government elected after the Second World War was foremost in the introduction of legal aid and advice to make real the notion that the administration of justice should be available for all. I therefore fully agree with what the noble Lord, Lord Goodhart said; I believe that I largely agree with what was said by the noble Lord, Lord Hunt of Wirral.
However, perhaps I may use another phrase, which is that the administration of justice by our Royal Courts of Justice—by our senior courts in particular—is the provision of a service. Some litigants who need that service are well able to pay more than they may have in the past by way of fees, to demonstrate that while that service is available—the reputation of our judges is such that many people, including those from abroad, want that service—the taxpayers of this country should not pay all the cost of providing the service.
A distinction may therefore be made between cases, especially of high-powered commercial cases brought by well-heeled litigants in the business field who choose to come to the courts, perhaps as an alternative to arbitration where, of course, they pay the full costs of the building and of the fees of the arbitrator, as well as of their own lawyers. Insofar as it has been beneficial to UK Ltd, as it were, to attract people to our courts as well as to have their cases determined by UK arbitrators, those cases may have a much closer affinity to arbitration cases than they do to poorer members of society seeking justice against a litigant.
Such cases are certainly distinct from human rights cases, where people need the court to ensure their important human rights—with which I know that the noble Lords, Lord Goodhart and Lord Hunt, are very concerned. The Master of the Rolls and the Lord Chief Justice, the noble and learned Lord, Lord Woolf, have frequently made speeches describing the various alternatives. If the High Court is too much of a Rolls-Royce which cannot sensibly be made available to everyone, the county courts, the small claims system, arbitration, an ombudsman and mediation should at least be available as alternatives in such circumstances.
So, surely, the Lord Chancellor's Department should endeavour on behalf of the British taxpayer—it involves not just the Treasury but the British taxpayer—to receive a measure of fees back, especially from certain litigants who want to use the service that we provide in our courts. Can we not trust the Lord Chancellor's Department to distinguish between such cases and others in which, if the courts are to be available to all, only the minimum of fees should he payable?
§ Lord Clinton-DavisMy Lords, I have much sympathy with the points raised by the noble Lord, Lord Goodhart, hut, if I may interpose, I think that he was referring to ordinary people being denied access to justice. If that interpretation is correct, I wholly concur. It is incumbent on my noble friend the Minister today to state whether, if the amendment is not carried, ordinary people 'will be denied access to justice. None of our courts should be a vehicle for the Government to make a profit. In many ways, our courts provide a social service, which should continue. I do not think that anything proposed by my noble friend interferes with that right, which is all-important.
I am troubled by some things that my noble friend Lord Borrie said. What he is arguing is ripe for misinterpretation. But it is a good idea that we should debate the issue outside the House of Lords. We should consider the entire issue, not in the context of the Bill, but as one of great importance. For that reason, although I agree with much of what the noble Lord, Lord Goodhart, has said, I do not think that there should be a Division.
§ Baroness Scotland of AsthalMy Lords, I wish to say straight away to the noble Lord, Lord Hunt, that, to the extent that every department is responsible for the allocation of funds given to it by the Treasury, together with any other member of any government that has ever existed, live in the shadow of the Treasury. I frankly acknowledge that I have never heard of a department that would not say that, if it were given more money, it could put it to exceptionally good use. I reassure the noble Lord that, if my right honourable friend the Chancellor of the Exchequer were minded to give the Lord Chancellor's Department much more money, we could put it to very good use.
However, within our current budget, we can make access to justice a reality for the people of this country. We are in communication with the Civil Justice Council (CJC). A meeting is planned for later this month. Ms Vicki Chapman, who chairs the CJC sub-committee on access to justice, will hold a meeting with our officials.
I hear what the noble Lord, Lord Goodhart, says about these matters. But, with respect, what my noble friends Lord Borrie and Lord Clinton-Davis said is right to the extent that the amendments are not necessary. Amendment No. 144 would make it a statutory requirement that the Lord Chancellor have regard to the need, when prescribing fees, to recover only the recurring running costs of the courts. A statutory provision that excluded judicial salaries and accommodation costs from the current running costs would be an undesirable fetter on the Lord Chancellor's powers in exercising his ministerial responsibility to set appropriate fees. lt would be to understate the true cost of the service. It would require a significant proportion—
§ Lord Hunt of WirralMy Lords, has the noble Baroness not noticed subsection (11), which already provides:
The Lord Chancellor may not … seek to recover judicial salaries".
§ Baroness Scotland of AsthalMy Lords, I note that that is what the noble Lord seeks.
§ Lord Hunt of WirralMy Lords—
§ Baroness Scotland of AsthalI may have misunderstood the noble Lord. Will he make his point again?
§ Lord Hunt of WirralMy Lords, Clause 87(11) states clearly, and the House has determined, that the Lord Chancellor may not seek to recover judicial salaries.
§ Baroness Scotland of AsthalIf I remember rightly, the provision is the result of an amendment moved by the noble Lord and successfully carried in this House. The Bill has not finished its passage. That may not be the way in which it reappears in due course.
§ Lord Hunt of WirralMy Lords, the noble Baroness should not use the opportunity of this exchange to respond to the House after it has reached a decision. I acknowledge that the Government were defeated, but does the noble Baroness really wish to respond by saying that the provision will probably be overturned in another place? Surely we are due a little more courtesy than that.
§ Baroness Scotland of AsthalMy Lords, I do not intend to be discourteous. I am responding to the amendment proposed by noble Lords. I have been asked to argue why it is said that the amendments mooted by the noble Lords should not carry sway in your Lordships' House. I intend to develop the issue. Noble Lords will know that it was in the government formed by noble Lords opposite that, in 1992, the then Lord Chancellor agreed that it was anomalous that judicial salaries should not be included. It was under that administration that the introduction of accruals accounting across government brought in capital charges for property reflecting the true cost of the service. Again, in 1992, under another administration, accommodation costs were included. All the measures that the noble Lord now says are unjust were introduced by his own party's government. We have made those comments and argued those points in relation to the fees during debates in this House on the other amendments urged by Members opposite.
I would be the last person to seek in any way to dishonour or to be discourteous to this House. But, when asking me to respond, the noble Lord used the words "in the light or' other amendments. I never wish to mislead the House as to the Government's view or position. Let it not be said that we believe that the current situation will necessarily be to the long-term benefit of the citizens of this country.
28 I am trying to be fair and open with the noble Lord, as I hope that I have always been, so that he better understands the arguments that I put, and so that he can put them in the proper context. It would be wrong of me not to make plain our position; otherwise, I daresay that the noble Lord might subsequently be surprised. I would hate for him to be so surprised as a result of my failure to indicate how the Government are currently minded to act. That is the context in which I make those comments.
I have also made plain that, subject to subsidies to protect access to justice, the Government's policy is to recover, through fees, the cost of civil court services, including judicial salaries and accommodation costs. The approach is based on the general principle that it is reasonable to expect parties that can pay to do so. I reiterate the point made by my noble friend Lord Borrie. We are talking about people who have the means to pay, and who should properly pay, to meet the costs of that part of the civil justice system that they are using to resolve their dispute. The policy of recovering most of the costs of the courts through fees ensures the best targeting of what are, after all, scarce public resources that come from the taxpayer's pocket. They are public expenditure decisions for the Government.
In due course, I will invite the noble Lords to withdraw their amendment. But, as the noble Lord has asked me to answer the issue more fully, it is only right and proper for me to do so. Noble Lords will know that the Government have a very proud record of protecting and promoting access to justice. It is one of the Government's overarching concerns.
On 19th November 1998, my noble and learned friend the Lord Chancellor outlined to Parliament nine principles—they can be found in Hansard at col. WA175. They include the following: fees should not prevent access to justice, and protection must be provided for litigants of modest means.
In protecting access to justice last year—2001–02—the taxpayer paid in agreed subsidies some £60 million in fees out of the total cost of civil business of £402 million. There was £40 million for legally aided litigants; £17 million for exemption from fees for those on means-tested benefits and for remission for those not receiving benefit but who suffer financial hardship; and £5.8 million subsidy towards certain family law applications—for example, adoption and domestic violence.
As long ago as 1997, my noble and learned friend the Lord Chancellor extended the exemption criteria to include income support based on jobseeker's allowance, family credit and disability working allowance. In 1999, that was updated to include recipients of working families' tax credit and disabled person's tax credit at the same level. It has been further revised to reflect the introduction of the new working and child tax credits and the pension credit from April and October respectively. By the end of this year, over five million people will be eligible for automatic exemption from court fees.
My noble and learned friend the Lord Chancellor considers that an approach that closely targets those in need is a more cost-effective way of ensuring access to 29 justice than wholesale subsidy. Not everyone who comes before the courts needs the assistance of subsidised court fees, but it is, as we have demonstrated, right that those in need of assistance should obtain it. The Lord Chancellor's Department programme will cover all issues that may have an impact on fees, including how to reduce the cost of services, how best to utilise the courts estate and the number of claims currently issued in the supreme court. Any fee increases that might arise as a result of the programme will be subject to future consultation.
We think that the balance is about right. The Government have shown their commitment to ensuring that citizens can have access and enforce their rights or have their obligations determined by an independent tribunal by enshrining in the domestic Human Rights Act 1998 the European Convention on Human Rights. Last year—2001–02— the Government provided funds of £1,717 million in civil and criminal legal aid. The total cost of running the criminal and civil courts was approximately £1.1 billion. In fairness to the taxpayer, there is no reason why court users who can pay should not pay for the cost of the civil court service that they use. Those sums should properly be resorted to.
The civil courts are not being underfunded. As everywhere. budgets are tight, but they have been set to protect frontline services. Some £95 million of IT investment is planned for the next three years. The number of sitting days has increased annually over the past five years. There is sufficient judicial capacity to support continued reduction in waiting times. Noble Lords will know that two orders passed through the House relating to increases in the number of judges. Ninety-three per cent of administrative work is disposed of within five days. Staff numbers have fallen by 2 per cent since 1999 as a direct result of computerisation. The Court Service is the most successful public sector organisation in terms of the Charter Mark award—it has 86 awards, and 100 are being assessed as we speak.
Transferring the cost to the taxpayer would not automatically secure more resources but would have to share priorities in the allocation of scarce public resources. There are expenditure decisions for government. I hope that I have demonstrated that we have taken those decisions responsibly, and will continue to take them responsibly, to ensure that there is genuine access to justice for the people of our country.
§ 4 p.m.
§ Lord Hunt of WirralMy Lords, I am grateful to the Minister for her comprehensive response to an amendment that is limited to ensuring that court fees seek to recover only the recurrent running costs of the courts. I am grateful to the Minister for setting out so clearly whether her department is mortgaged to the Treasury. Sir Hayden will be pleased to read afterwards how his words have been placed so clearly in context. I am grateful to the noble Baroness for that.
I agree strongly with the points raised by the noble Lord, Lord Goodhart, about access to justice. To the noble Lord, Lord Borrie, I say that we are dealing with 30 a policy of full cost recovery. The difference between what the noble Lord spoke of and what the Treasury-imposed policy would require is that the court fees— to quote the Civil Justice Council—would fail to recognise,
the public functions that civil law and civil litigation perform".The council also says:Fees are collected only from litigants, but the civil justice system benefits many who do not become involved in proceedings".That is why I am so pleased to hear that the subcommittee, at least, is meeting officials from the Lord Chancellor's Department. We must find a way through the difficulties that we share. To the noble Lord, Lord Clinton-Davis, I say that I will not respond to his invitation to the noble Lord, Lord Borrie, to step outside to resolve matters, but I agree with him that the debate must go on outside the House as well.In the light of that, I want further time to reflect, and I beg leave to withdraw the amendment.
§ Amendment, by leave. withdrawn.