COMMONS AMENDMENTS (Hansard, 12 November 2003)

§ Lord Filkin

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 9 to 11. The amendments concern access to justice and court fees, which is an issue that received considerable consideration in the early stages of the Bill.

Amendments Nos. 9 and 10 accept the principle of an amendment which was passed during the Lords passage of the Bill. An amendment was passed in Committee which would make it a statutory requirement that the Lord Chancellor should have regard to the need to facilitate access to justice when prescribing fees. The Government have listened to those concerns. After careful consideration, we have concluded that even though subsection (2) is not strictly necessary, the effect of the provision should be included.

Amendment No. 9 removes the original Lords amendment. Amendment No. 10, the Government's proposal, will ensure that the Lord Chancellor must have regard to the principle that access to the courts must be not be denied when including any provision in an order under that clause. For the first time, that will place the common law position, established by Witham, on a statutory footing.

In addition, the Court of Appeal in Witham has already confirmed that a citizen has a constitutional right of access, although not a right of free access, to the courts. A system of exemptions, remissions and reductions already exists under the current fee-setting powers to achieve that for less well-off litigants.

If the House agrees with the amendments, the regime for setting courts fees will be much stronger and clearer and have a statutory basis in principles for the first time. Clause 92 includes, also for the first time, an express power to exempt or remit fees. That, along with a new fees order, will be subject to wide consultation with the heads of division and, for the first time, the head and deputy head of civil justice and, for civil proceedings, the Civil Justice Council. It will also, for the first time, be subject to parliamentary scrutiny by way of the negative resolution procedure.

Amendment No. 11 removes an amendment that was added in this House, which would prevent judicial salaries being taken into account when setting fees.

1386 After much consideration, we are firmly of the view that that would be an undesirable obstacle to the Lord Chancellor's powers in exercising his ministerial responsibilities. I am afraid that we cannot accept it.

The Government's policy is to recover the full cost of services provided, including judicial salaries, based on the general principle that parties are expected to pay the cost of that part of the civil justice system that they are using to resolve their dispute. The general policy of recovering most of the costs of the courts through fees ensures the best targeting of scarce public resources. Those are properly public expenditure decisions for government.

The Government's policy on setting fees and charges is set out in the Treasury's fees and charges guide. That explains that fees should be set to recover the full cost, subject to any agreed subsidies. The provision would provide a subsidy for all types of cases. The Government consider that an approach that closely targets those in need by way of the system of exemptions, remissions and subsidies is a more cost-effective way of ensuring access to justice.

I shall not go into much greater detail. I should also point out that the recovery of judicial salaries as part of the objective of policy was introduced by the Conservative Party in 1992. We believe that they were correct in that. I shall not upset the House by indicating the scale of loss of income that would follow from that. I shall merely indicate that that would not be seen by the Government as a trivial issue. For reasons both of principle and of the Government's right to protect their income sources, I hope that the House will understand why we are resistant to that amendment, if not to the others in the group.