New Clause 2 — Judicial Independence
Courts Bill [Lords]
3:30 pm

'The Lord Chancellor is under a general duty to preserve and maintain the independence of the judiciary.'.—[Mr. Heath.]

Brought up, and read the First time.

4:30 pm
Photo of Mr David Heath

Mr David Heath (Somerton and Frome, Liberal Democrat)

I beg to move, That the clause be read a Second time.

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Mr Michael Martin (Speaker)

With this it will be convenient to discuss the following:

New clause 4—General duty—

'The Lord Chancellor and the Department for Constitutional Affairs are under a general duty to preserve and maintain the independence, impartiality and integrity of the judiciary and the lay magistracy.'.

Amendment No. 1, in page 1, line 5 [Clause 1], leave out 'and effective' and insert ', effective and accessible'.

Amendment No. 48, in page 1, line 10, leave out 'and'.

Amendment No. 49, in page 1, line 10, at end insert

', and that there is at least one magistrates' court in every local government area in the United Kingdom (at least one within every borough and district council area in England and Wales)'.

Amendment No. 50, in page 2, line 2, at end insert

'which must include a report on the operation of this legislation and must contain a report by analysts independent of Her Majesty's Government about how the changes brought about by this legislation and other changes since May 1997 have affected the accessibility of courts to court users.'.

Amendment No. 55, in page 44, line 14 [Clause 92], at end insert—

'(3A) The Lord Chancellor may not under this section prescribe fees which seek to recover—

(a) the costs of judicial salaries; or

(b) the notional cost in use of heritage buildings.'.

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Mr David Heath (Somerton and Frome, Liberal Democrat)

At the first sitting of the Committee that considered the Bill, I said that the first group of amendments that we were debating went to the crux of the Bill and dealt with the key issue for many Committee members—the accessibility to justice that is conferred or denied by the Bill. The present group of amendments goes even wider and deals with three key issues that will be encapsulated in our debates this afternoon. First, there is the issue of judicial independence; secondly, physical accessibility to justice; and thirdly, financial accessibility to justice. I shall deal with each issue in turn.

The issue of judicial independence is encapsulated in new clause 2, as well as new clause 4, which was tabled by Mr. Hawkins. Without wishing to be too pompous about the issue, there is a fundamental constitutional arrangement that we would be unwise to dislodge. There are three pillars of democracy—the Executive, the legislature and the judiciary—and our democracy works best when each not only preserves its identity but maintains its independence from the others. Indeed, although it has never been written in our constitution because we have no written constitution, it appears in the constitutions of countries with similar jurisprudence. It was clearly enunciated, for instance, by the founding fathers of the democracy of the United States—John Adams could not have been plainer in what he said on the issue.

When we are talking about the independence of the judiciary, we are not talking about some supposed freedom from criticism that the judiciary ought to enjoy. It is entirely proper that occasionally both the legislature and the Executive have the opportunity to criticise the court process. Indeed, people who say that politicians should have nothing to do with the structures of the judiciary are wrong, as that is essentially a political issue. However, we must be sure that the judiciary is independent in its actions, decision making and the way in which it operates. If those dividing lines begin to be blurred, it is too easy for an Executive to exercise an unhealthy influence on the judiciary. It is probably unfashionable to quote Plato, but he said it all in "The Republic":

"What I say is that 'just' or 'right' means nothing but what is in the interest of the stronger party."

The stronger party will always be the Executive if left to its own devices, which is why we hold the judiciary's independence to be important.

Friction is to be expected—there will always be times when the judiciary takes a different view from the Secretary of State, and the Secretary of State must accept that. Some do so with good grace, and some do so with rather less than good grace. Although I am not the greatest fan of Lord Irvine, I believe he did a good job of preserving that view of the independence of the judiciary, both in Cabinet and elsewhere. In evidence that he gave to a Committee of this House, he said that

"maturity requires that when you get court decisions you favour, you do not clap and when you get a court decision which is against you, you do not boo."

He was right. He did not refer to the Home Secretary by name, so one cannot assume that he had the Home Secretary in mind. Nevertheless, there is a clear dictum there that is worth underlining.

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Mr Alan Beith (Berwick-upon-Tweed, Liberal Democrat)

My hon. Friend may have noted that although we were able to elicit those words from Lord Irvine in Committee, we had difficulty in getting anything quite so strong out of the current Lord Chancellor when we put the same questions to him, hoping that he would be as robust in his response.

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Mr David Heath (Somerton and Frome, Liberal Democrat)

Not for the first time, my right hon. Friend goes to the heart of the matter. The changes in the Department, not just in personnel—it is unhealthy to personalise the matter too much—the changes in the way that the Department works, and particularly the changes that are envisaged, such as the removal of the position of Lord Chancellor and the moves towards a new Department, mean that there are far fewer protections than there have been up to this point. Up to now, however unsatisfactory it has been, we have had a Cabinet Minister who was also a member of the legislature and the head of the judiciary, and could make that point repeatedly if the judiciary was under attack from other Ministers. In future that will not be the case unless we do something to replace the present situation. There is a lacuna in the make-up of the Cabinet that needs to be filled.

Some may hope that that will be done not in the Cabinet but outside, by the Lord Chief Justice. Lord Woolf is doing a remarkably good job of maintaining that position. So adamant is he that he will protect the position of the judiciary that he has delayed his retirement expressly for that purpose. Having said that he learned at "a very late hour" of the significant constitutional changes that the Government have put in train, he feels it is his duty as Lord Chief Justice to ensure that judicial independence is protected, and that the quality of justice for future generations is protected. I agree with him, but I do not believe that that can be done entirely from the position of the judiciary outside Government. That is why the new clause is so important.

The Government accept that there is a risk of the principle of judicial independence being eroded. They made reference to it in the consultation papers that they issued. They said that there is a question that is properly asked, and I accept that. I want to make clear our reply to that question, which is that there is a need for a statutory basis for judicial independence, and that the Bill is as good a vehicle as any to establish it. I hope that the Minister will respond in kind to that before we consider very important legislation in the next Session dealing with the setting up of the Supreme Court and the process for taking judicial appointments away from the Lord Chancellor.

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Mr John Bercow (Buckingham, Conservative)

I am working on the assumption that new clause 2 is a probing clause, notwithstanding the legitimate and good intentions that underlie it. On the strength of the Government's track record to date, does the hon. Gentleman fear that the likely response will be for Ministers to profess their support for the principle of the independence of the judiciary in general, while in practice failing to observe it in the particular?

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Mr David Heath (Somerton and Frome, Liberal Democrat)

In the latter point the hon. Gentleman is right, but in the former he is not. I am deadly serious about having something in statute that at least attempts to preserve the independence of the judiciary. Indeed, his colleagues clearly feel the same way in terms of the new clause that they have tabled to the same effect.

I have my worries, because as soon as we move away from the specific position of Lord Chancellor to dealing with a Secretary of State—as we know, in the way that British law is constituted, Secretaries of State are interchangeable and there is no specific Secretary of State to whom a duty may be applied, other than the Lord Chancellor—the duty will become a general duty, which I think will be largely ignored. This may be imperfect phrasing, but the principle must be right and it must be one on which the House has a clear view. I hope that it will be expressed later this evening.

I am happy to see that my amendment No. 1 also carries the names of Conservative Front Benchers, which is hardly surprising as we made common cause on the issue in Committee and elsewhere. The amendment deals with accessibility, which has been at the core of almost all our debates on the subject. We had sapient advice from the Select Committee on the Lord Chancellor's Department as to what ought to be in the Bill. Indeed, the wording I have chosen is exactly that recommended by the Committee, which I believe it took from evidence it received from Professor Bridges of Warwick university. I think that it is right.

The amendment deals with a general duty of ensuring not only that courts are simply "efficient and effective", as the Bill says, but that they are accessible to the people who need access to them. The words "efficient and effective" are good in themselves, but they can disguise a multitude of sins. As I said in Committee, it would be efficient and effective to have a single court, which would run at a low unit cost. It would not, however, be accessible to most of our constituents and it would not be in the interests of justice.

The Government's response throughout has been to point to clause 30, which deals with the accessibility of courthouses, and the amendment that, with whatever degree of reluctance, they accepted from another place. I shall be clear about this: I accept that that is a major advance. The Government tried desperately to prevent it in the Lords, despite the fact that they are now saying that it is the best thing since sliced bread. They did not want it in the Bill because they know, as I do, that throughout the country courthouses have been closing year after year. I have to say, however, that that happened not only under this Administration but under the previous one.

What is the effect of those courthouses closing? First, people feel more and more remote from the criminal justice system. Secondly, particularly in rural areas such as mine and in small towns throughout the country, they feel that neither the police nor any other aspect of the criminal justice system has any interest in them any more. Furthermore, it will make for extra expense and inconvenience for everybody who has to use the courts—whether that be defendants, witnesses, the probation service, the police service or solicitors, who are finding it increasingly difficult to recruit to local criminal practice—other than those who run them. An additional and perverse effect will be that where police officers are required to escort prisoners they will be taken out for long periods from the local areas where we all want to see them policing. That is unfortunate.

The Government's view is that once courthouses have been dealt with, the whole problem has been dealt with. I disagree, because there is a lot more in the Bill where accessibility ought to underlie the position of the Lord Chancellor and the Department. For instance, it would be possible to maintain a courthouse and not hold a single sitting in it. That would be ludicrous, but we have seen similar things happen on the railways, where services are maintained but not advertised so that they can eventually be closed. It is quite likely, however, that major cases will be consistently moved to more and more distant courthouses. I believe not just that the geographical position of courthouses should be maintained, but that courts should hold convenient and regular sittings. Amendment No. 1 provides for that general duty of accessibility.

Another point made in Committee—a valid point, I think—was that some courthouses might be accessible in geographical terms but not accessible in terms of structure to some people. My amendment would ensure that what is now the Department for Constitutional Affairs had an interest not just in maintaining the existence of courthouses, but in bringing them to a standard appropriate for the administration of justice, particularly in rural areas. I believe that all Opposition parties support the amendment. I shall listen carefully to the Minister's response, because we may well wish to press the amendment to a Division later.

Amendment No. 55 deals with fee structure and with financial barriers to justice. An extraordinary arrangement introduced not by the current Government but by their predecessor, by stealth, has had insidious effects. Under that arrangement, civil court fees should recover the full costs of the proceedings. That has never been publicly announced as a policy, and the House has never been asked to adjudicate on it. At one stage it was axiomatic that the state met the costs of judicial salaries and court accommodation; fees were not a product of the costs incurred in the administration of justice. I am very concerned about the change, which presages a vicious spiral in costs that will eventually deprive many people of fair process.

I am not alone in that view. My amendment is very similar to one suggested by the Law Society, which rightly takes the matter extremely seriously. It says that the policy of full cost recovery has placed considerable pressure on court fees, which have risen by about 12 per cent. in the past three or four years—about double the rate of inflation. Nor does the arrangement provide enough cash for the courts; the civil courts are still experiencing a great deal of difficulty.

Full cost recovery would be fine if—a big "if"—it were held that the court system in civil cases was there purely for the good of those involved in the proceedings, but I do not believe that to be the case. I believe that there is a common good in providing justice and mediation in such cases. That is the traditional view, held by most English-speaking jurisdictions. This policy is clearly Treasury-led: I cannot believe that any Lord Chancellor initiated it. What can be done to ameliorate it? My amendment provides for two major exceptions.

The first exception relates to judicial salaries. It is nonsensical that we should seek to recover the salary costs of the judiciary through court fees. That is a non sequitur—it is inappropriate and we should finish it. Secondly, there is the notional cost of heritage buildings. It will not have escaped hon. Members' notice that many of our court buildings are rather fine and are often in very expensive parts of the cities that they serve. We have only to look at the Royal Courts of Justice to see the apotheosis of high architecture in the court system. It is an enormously expensive listed building with huge maintenance requirements to keep it in the style in which English Heritage believes that it should be accustomed. Those costs are loaded on to the court fees that are applied. That is ridiculous. The average litigant, if asked to give their opinion on the appropriate venue, would say, "The cheapest hut that you can find, m'lud, because that will reduce my court fees." I do not advocate that because some court buildings are fine buildings that are well suited to their purpose, but the notional cost of their usage that the Treasury works out should not be recovered from people who are seeking justice. My proposal is a sensible compromise—it is a compromise because I do not believe that there should be any linkage between costs and fees—that would at least take out some of the most unacceptable parts of the calculation of recovery costs.

This group of amendments addresses three basic principles: first, judicial independence, because nothing could be more important in constitutional terms; secondly, the physical accessibility of courts, because nothing could be more important to many of our constituents who find themselves deprived of a courthouse within easy reach of where they live; and thirdly, financial accessibility, because it is a fundamental principle that no one should be deprived of justice simply because they cannot afford to go to court to establish the rightness of their claim. I look forward to the Minister's response.

4:45 pm
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Mr Nick Hawkins (Surrey Heath, Conservative)

As Mr. Heath said, our parties made common cause on several issues in Committee, and we do so again today. As well as commenting on the Liberal Democrat new clauses and amendments, I shall discuss those that we have tabled.

I join the hon. Gentleman in his appropriate tributes to the continuing work of the Lord Chief Justice in standing up for judicial independence. I agree with Mr. Beith, who is Chairman of the Select Committee on the Lord Chancellor's Department, that the present Lord Chancellor appears to be not as robust a defender of that crucial principle as was his predecessor. I agree with the hon. Member for Somerton and Frome that there is a gap in the Cabinet in terms of fighting for judicial independence.

The issue goes beyond judicial independence. We are concerned, too, about the independence and impartiality with which the Government will treat the lay magistracy. Our new clause 4 therefore goes a little further than the Liberal Democrat new clause by proposing that the Lord Chancellor and the new Department for Constitutional Affairs should be

"under a general duty to preserve and maintain the independence, impartiality and integrity of the judiciary and the lay magistracy".

Are we right to be so suspicious about the Government? We have every ground to be suspicious, not only because of such matters as the hon. Member for Somerton and Frome rightly talked about—the closure of courthouses and other interferences, and the Home Secretary's regular levelling of criticism, in public print, of judges—but because of the way in which this Government have approached other senior appointments in recent times. In particular, I want to draw attention to the recent, rather bizarre, choice of the new Director of Public Prosecutions. It has caused great concern at all levels of the legal profession, particularly among criminal practitioners to whom I have spoken, that a senior barrister—albeit of undoubted ability—whose whole career has been based on criminal defence work has suddenly been appointed as the new DPP. There is also great concern that more than an element of cronyism might be involved in that appointment, given the chambers from which that gentleman came.

It is strongly felt—not only by us, but by practitioners of many political persuasions and of none—that many more highly qualified people with experience of prosecutions should have been considered for the post of DPP, ahead of the person whom the Government chose. Of course, it subsequently being revealed that the new DPP had a serious criminal conviction for drugs offences—albeit from a long time ago in his youth—was also a matter of grave concern. Sufficient question marks exist for that appointment not to have happened. The possibility that such things might happen in future reinforces the need for the Bill to include a protection for the independence, integrity and impartiality of the judiciary and of the lay magistracy. Of course, we do not disagree with the Liberal Democrats' new clause 2, but our new clause 4 is certainly more far-reaching. I hope that the hon. Member for Somerton and Frome agrees that either new clause would be an improvement on the Government's current drafting—[Interruption.] I am glad to receive his assent to that proposition.

The Government have closed many courthouses—more than 100, according to the answer to my last parliamentary written question on the matter. The Minister will say that courthouses were closing under the previous Government, which is of course true, but that does not justify yet further closures. As the hon. Member for Somerton and Frome rightly said, as a result justice is becoming less local and less accessible. We debated this matter extensively in Committee, but it is worth ensuring that such important points are made again today in this Chamber. Often, commentators and reporters pay far too little attention to what happens in Committee; more notice is taken of what is said on Report and on Third Reading. We have become too used to Ministers trotting out the same tired cliché: that magistrates courts committees are taking decisions on court closures. As we pointed out in Committee, MCCs have been so boxed in by Government guidance that, in effect, such guidance is forcing court closures. That is happening because the Government do not value the local element of justice sufficiently highly.

During the past few years, we have heard at parliamentary questions many examples of the effects of court closures. In a highly publicised case in rural Wales, a defendant had to walk to court because the courthouse in which his case might have been tried many years ago had been closed, and there was no effective public transport. The case came to prominence when the defendant received a more lenient sentence because the court felt that, in the absence of public transport, he had made valiant attempts to get to court, walking some 30 miles. I agree very much with the forceful words of the hon. Member for Somerton and Frome that we must return to the basis of local magistrates, with knowledge of their local area, making judgments on cases.

Our amendments Nos. 48, 49 and 50 are intended to introduce into the Bill a mechanism to ensure that we have local justice again. There should be a magistrates court in every local authority. My local authority has just lost its last one, and it is wrong that a town the size of Camberley—the main town in my constituency—and a local authority the size of Surrey Heath should no longer have a single magistrates court between them.

The hon. Member for Somerton and Frome said that his suggestion that courthouse buildings might stay open but not be used might be far-fetched, and drew a parallel with railway lines that were theoretically open, but the service never publicised. However, with the last remaining courthouse in my constituency, the Government did precisely what he is worried about. Technically, the courthouse at Camberley remained a courthouse, but it was not used for some time—more than a year, I think—before a closure decision was finally announced. What the hon. Gentleman suggested is already happening, so his example was not far-fetched at all. Our three amendments, taken together, will introduce a proper safeguard so that there are no more magistrates court closures than are absolutely necessary.

Amendment No. 50 would also ensure that there was a proper check on how the legislation is working. I have already said that there are good reasons not to trust the Government on such issues, and in the amendment I have sought to ensure that in future a proper analysis is made. This is a Government of constantly fiddled figures in every area, from health to education and from law and order to transport, so we need a completely independent analysis, unconnected with Her Majesty's Government, in the form of a report back to the House—and, undoubtedly, the incoming Conservative Government after the next election will need to correct the errors.

We agree with the Liberal Democrats' amendment No. 55 on judicial salaries, although as it was tabled quite late, as were some of ours, we did not have the chance to add our names to it. I strongly agree with the views of the hon. Member for Somerton and Frome both on judicial salaries and on heritage building costs. As he rightly says, even now, with increases in court costs well above inflation, imposing an enormous strain on practitioners and their clients, the civil courts in particular still have problems, and we are concerned about that.

It is always difficult to predict the future, but unless complete disasters arise as a result of the Bill, it seems unlikely that there will be another major piece of courts legislation for a few years at least, so we ought to take the opportunity offered by the Bill to ensure that issues such as the accessibility of courthouses and the independence of the judiciary and the lay magistracy are dealt with now. Although, as the hon. Gentleman rightly pointed out, in another place the Government were dragged kicking and screaming to agree to an amendment to clause 30, it would be far better for those crucial issues to be dealt with right at the beginning of what will become the Courts Act. Unless that happens, the legislation will be too weak to protect sufficiently the independence of one of the three pillars of our constitution.

There is common cause between the hon. Member for Somerton and Frome and myself on a number of the issues. Our amendments, taken together, go somewhat wider than his and would be even more appropriate. I, like him, will now wait to see whether we hear the same tired old clichés from the Minister, or whether he will address the issues seriously.

5:00 pm
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Mr George Howarth (Knowsley North and Sefton East, Labour)

I apologise to Mr. Heath because I was not in my place for the early part of his speech. Unfortunately, I was travelling on the west coast main line, which has not been at its most reliable today. I shall be brief and focus on new clause 4 and the speech of Mr. Hawkins.

If one reads new clause 4, it is difficult to oppose—rather like motherhood and apple pie. It talks about maintaining

"the independence, impartiality and integrity of the judiciary and the lay magistracy."

What I find disturbing about the speech made by the hon. Member for Surrey Heath—and, to some extent, disturbing about what I heard of the speech of the hon. Member for Somerton and Frome—is the complacency of it all. It is as though everything is working wonderfully, and all we have to do is maintain the integrity of the judiciary and the lay magistracy so that everything will be okay. I have to say that, if the experience of my constituency is anything to go by, it is not all going very well.

I provide one small example to illustrate my point. Obviously, I shall not mention any names because court cases may still be pending. A young man in my constituency, aged 15, is on an antisocial behaviour order. Strictly speaking, it is an interim ASBO. He is a one-child crime wave, which is the tabloid way of describing it. Frankly, he represents considerable and dangerous aggravation to people living in the area: people are intimidated and afraid. Because of this young man's activities, one block of flats may have to be pulled down.

This young man was put on an interim ASBO, but he breached it on five occasions and was taken back to the magistrates court, which then decided to release him, causing outrage to constituents living in the vicinity of where he lives and carries out his activities. His solicitor then took the case to the Crown Court and had the conditions of the ASBO, which included the stipulation that he should not drive a motorised vehicle, varied, with the result that, for some reason beyond my comprehension, the Crown Court decided to take that condition out altogether. It is in any case an offence for him to drive or take a vehicle without the owner's consent, but why the Crown Court should remove that condition is, as I said, totally beyond me. Subsequently, the young man committed further breaches and was taken to see a judge in chambers to discuss bail conditions. The judge decided that, because they were all public order offences, none of them should carry a custodial sentence. Now that young man is back out on the streets.

The local authority and the police had done much painstaking work in that case, and were utterly shattered by the way in which the courts dealt with it. Such cases are often seen as low-grade street crime and disorder. In fact, whole communities are literally locked into their houses because of such activities, particularly at night. They are not taken sufficiently seriously and I believe that that problem needs to be dealt with.

I have written to the Secretary of State for Constitutional Affairs, not with the intention of interfering in any subsequent court cases, but simply to point out that the system is not working. The truth is that communities feel desperately let down by the judiciary in such cases. If ASBOs cannot take into account a series of otherwise unimportant offences, which create a pattern when put together, the whole point of the legislation—I was a junior Minister in the Home Office when the original legislation was passed—has been missed. If the courts are not prepared to use custodial sentences, when the orders attached to an ASBO are breached, ASBOs are virtually unenforceable. When local authorities and the police do their job properly—as they have done in my area for some time—and take cases to court, but the courts fail to deal with them properly, the failure lies with the courts, not with the local authorities and the police. The hon. Member for Surrey Heath should be a little less complacent in speaking about the courts than he was in his speech a few minutes ago.

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Mr Alan Beith (Berwick-upon-Tweed, Liberal Democrat)

The members of the Committee will be glad that both Conservative and Liberal Democrat Front Benchers have taken seriously several points that the Committee drew to the attention of the House earlier, and that we are continuing to pursue them at this stage in the Bill's progress. The issue of judicial independence, referred to in new clauses 2 and 4, did not arise on Report, but it has occupied us since, especially in the light of the constitutional changes announced by the Government that are starting to take effect. I am persuaded that it would improve the Bill to have the duty to ensure judicial independence listed as one of the Lord Chancellor's duties in statute and the Bill provides the opportunity to do so.

I do not claim that the current occupant of the post of Lord Chancellor, the Secretary of State for Constitutional Affairs, is not, in principle, in favour of judicial independence, but I am not convinced that he regards himself as having a uniquely important role in defending it, as his predecessor did. Indeed, over many years, many of his predecessors saw it as part of their constitutional duty as Lord Chancellor. For many of them, it justified the hybrid nature of the Lord Chancellor's role. They felt that as judge and head of the judiciary they were in a better position to defend judicial independence in Cabinet. I agree with the Government that that hybrid role is unsatisfactory in principle, even though many occupants of the position have made it work well in practice. I do not, therefore, oppose the Government's general line of reform, but we are in danger of losing the Lord Chancellor's unique role in Cabinet of standing up for the principle of judicial independence in certain political circumstances that have led Ministers in various Governments to attack judges or to create a sense of insecurity because they have been unhappy with judges' decisions.

The Lord Chancellor's frantic attempts to divest himself of his role to meet some timetable for abolishing the post altogether militate against ensuring that the important jobs that he now does remain provided for in the system in a way that does not dilute them or make them less significant. My hon. Friend Mr. Heath mentioned the fact that duties imposed on a Secretary of State are common to Secretaries of State generally, and can be reallocated at will between them. That is how our system of government works. However, that does not apply to the duties of the Lord Chancellor, especially his duty in relation to judicial independence. Therefore, unless some other mechanism is found, the removal of the post puts that duty at risk. Members of the judiciary fear that it will weaken their independence and deprive them of one of the means of asserting it at Cabinet level.

The Lord Chancellor is in such a desperate hurry to remove his role because he has been given a timetable to do so. The original timetable for abolishing the post of Lord Chancellor was between 6 pm and 10 pm on the Thursday that the changes were announced, until it became clear that that was impossible. By 10 pm, we had a Lord Chancellor in place who had to get his wig ready for the following morning's sitting of the House of Lords. It is not a necessary part of removing his role as a judge or as Speaker of the House of Lords that we should hastily remove his duty to ensure judicial independence. At times, the Lord Chancellor seems to be like a stripper with an early train to catch, removing items of clothing—almost literally—as quickly as possible to meet the timetable.

The Lord Chancellor's duty is important and it must be safeguarded. If that means that the post of Lord Chancellor, divested of some of its constitutionally hybrid duties, has to remain in Cabinet for some time to come, what harm would there be? The holding of the post of Lord Chancellor alongside that of Secretary of State for Constitutional Affairs has become part of the system. The post of Lord Chancellor and the duties that have accrued to it, as well as any others that we may specify in the measure, would be one way of continuing to safeguard those things until the Government come up with another or better way. So far, they have not done so. I welcome the inclusion of such a provision in the Bill.

My second point is about the general duty on accessibility, which relates to amendment No. 1. The Committee referred to the desirability of that general duty. Paragraph 19 of our report stated that

"the Bill as presently drafted may lead to centralised decision-making on court closures which does not take proper account of local circumstances. Accessibility includes ensuring that courts sit in places which are geographically convenient to victims, witnesses and other court users and are accessible by public transport".

The Committee felt that those factors should be part of the general duty.

Some attempt has been made to meet the requirement in other ways, but Ministers must be aware from the representations that they receive that Members on both sides of the House are deeply concerned about closures, either those that have happened or those that they fear may happen in future, and about other aspects of accessibility. Sometimes, as my hon. Friend the Member for Somerton and Frome pointed out, those aspects may conflict; for example, ensuring that courts are accessible to the disabled can give rise to questions about some courthouses. However, the difficulty and delay in ensuring that a courthouse is fit for the disabled should be attended to; it should not lead to closure, thus making the courthouse inaccessible for many other people. It is highly desirable that the general duty of accessibility should be placed on the Lord Chancellor, which is why we want it to be included in the Bill.

My final point relates to amendment No. 55 and was raised by my hon. Friend the Member for Somerton and Frome: full cost recovery. In its evidence to the Select Committee, the Law Society summed up the case rather well. It stated that the concept of full cost recovery

"fails to recognise that the courts have a public as well as a private role".

We said:

"The judicial process serves important public functions by clarifying and developing the law and setting precedents for litigants to settle their cases or run their affairs, which is of wider benefit."

The decisions that a particular court makes and the process whereby it makes them are important to people who will never see the inside of that courtroom and who are not paying the costs of that case. The case may settle issues that will enable them to know what the law is and to reach sensible decisions on matters affected by the law. That wider public benefit makes nonsense of any attempt to move towards a system of full cost recovery. In representing the concerns of the Select Committee, I should be happier if the legislation could be worded so that that point was much clearer.

The Department has serious budgetary problems and is under constant Treasury pressure to achieve full cost recovery—a notion that is present in so many other parts of the public service but when applied to the courts is plain wrong. A balance must be struck. The contribution from fines and fees is the means neither to fund our courts system nor to decide what the total budget of the system should be. When considering the case sometimes put by the Treasury—that the litigants in a case should always meet the entire cost—Ministers must have regard to the much wider public service that courts provide. Of course, there are circumstances in which it is entirely appropriate that substantial costs should be met by litigants, but there are others in which it is not and the wider public benefit must be recognised.

5:15 pm
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Mr Christopher Leslie (Parliamentary Under-Secretary, Department for Constitutional Affairs; Shipley, Labour)

Clearly, in Committee, we touched on a number of those matters, and it is not surprising therefore that both Opposition parties have posed questions about accessibility, independence and so on in this group of amendments. I will try my best to respond to each amendment and new clause in turn.

New clause 2, which was tabled by the Liberal Democrats, and new clause 4, which is very similar and was tabled by the official Opposition, are both about trying to ensure that the Lord Chancellor has a duty to preserve and maintain judicial independence. It is clear that the Lord Chancellor's existing role and duty is to uphold and maintain the independence of the judiciary and magistracy. That has been a cornerstone of the Lord Chancellor's role for a very long time indeed, so a general duty and responsibility already exists. Of course, the Lord Chancellor's duty is not statutory, but it is no less real for that fact. It is a duty of very real constitutional significance, as the consultation paper on judicial appointments already makes clear.

Successive Lord Chancellors have regarded the maintenance of judicial independence as one of their most serious and important responsibilities. I can assure Mr. Beith that the current Lord Chancellor also continues to observe that responsibility with the highest regard. I am not quite sure about the right hon. Gentleman's analogy with a stripper trying to catch a train, but I will ensure that I pass on his observations in great detail.

Of course the judges have always recognised that the Lord Chancellor has such a duty, which is a well-established and widely acknowledged characteristic of the Lord Chancellor's role. So there is an accepted duty that does not rely in itself on legislation to strengthen it. Nevertheless, new changes are clearly afoot: the move to abolish the office of Lord Chancellor and developing a new focus as the new office of Secretary of State for Constitutional Affairs has been created.

Those serious issues merit consideration, and the consultation paper on judicial appointments asks in paragraph 21 whether the Lord Chancellor's responsibilities to defend judicial independence should be embodied in statute, but it would be wrong to reach a conclusion now, as that would pre-empt the ongoing consultation exercise, which runs until 7 November. We need to consider the responses to that consultation very carefully before reaching a conclusion on whether it would be appropriate to legislate in such a way.

Some respondents might prefer to follow the example of the Justice (Northern Ireland) Act 2002, by which a statutory duty to protect judicial independence was placed on all those concerned in the administration of justice, not just on the Secretary of State alone. Again, we should be open-minded—the consultation has not finished—so the time to decide has not yet been reached, and in any case I do not believe that the Bill is the appropriate vehicle. The Government believe that the question will be addressed again during the process of abolishing the post of Lord Chancellor, and we will return to the issue at that point, when we are fully in possession of the consultation responses.

My hon. Friend Mr. Howarth made a number of comments. He is clearly keen to see radical improvements in the justice system to serve the public. Of course we are talking about judicial independence when we refer to new clauses 2 and 4, but that does not preclude hon. Members on both sides of the House from voicing their views and concerns about the operation of the criminal justice service. He made powerful points, and he is absolutely right to suggest that we must all strive to have a more effective justice system.

Under amendment No. 1—originally a Liberal Democrat amendment, to which Conservative Members have subsequently added their names—the Lord Chancellor would have a duty to ensure that the courts system is accessible. Of course, accessibility is extremely important, but the Bill already covers that matter quite amply. First, the Government have already accepted amendments about accessibility. Clause 30(2), which relates to the places, dates and sittings, now states:

"In exercising his powers . . . the Lord Chancellor shall have regard to the need to ensure that court-houses are accessible to persons resident in each local justice area."

I am glad that Mr. Heath says that that is a major advance; indeed, it is. Furthermore, on the issue of fees, clause 92 says that the Lord Chancellor

"must have regard to the principle that access to the courts must not be denied."

Accessibility is therefore already included in the Bill. The duty to run an effective justice system already encompasses the concept of accessibility, and clause 1 places on the Lord Chancellor the duty to run an efficient and effective court system. Surely the word "effective" encompasses notions of accessibility. There are of course many different, laudable descriptives that could be added to the Bill, and we could have a long debate about which objectives should be inserted with the key concepts of "efficient" and "effective". Should we have a "responsive" court system, a "high-quality" court system, an "open and transparent" system, or a "user-friendly" system? All those are, of course, important, and all are encompassed by the sense, as we framed it in the Bill, of an effective court system.

Accessibility will be enhanced by the Bill, but it will also be enhanced by the unification of courts administration, which is a central tenet mentioned and provided for in this Bill. It will enable a more flexible use of the court estate, with the possibility of shared courtroom accommodation, which could prevent courts from closing as new opportunities to use their space productively are opened up. Courts boards, too, will be a new, additional safeguard to accessibility, and will be community-focused, contributing to the development of local plans and local priorities, and much more tailored to local needs. No courthouse will be closed without the involvement of a courts board in the decision.

Accessibility is also about the facilities available to court users, on which the hon. Member for Somerton and Frome touched earlier. Location is not the only consideration for accessibility, and facilities such as video links allowing vulnerable witnesses easier and less traumatic opportunities to give evidence all help to facilitate accessibility. Using the internet, such as the money claims online site that has been developed for issuing claims and checking on case progress, also aids accessibility. As several hon. Members have observed, improving disabled access to court buildings and the court estate is also crucial. I therefore believe that the issue of accessibility is amply dealt with in the Bill, and that amendment No. 1 is not required.

Under amendments Nos. 48 and 49, the Opposition suggest that the Lord Chancellor should have a duty to ensure that at least one magistrates court is provided per district council or per local authority borough area. It is a crude attempt to raise the issue, but I accept that Opposition Members are seeking to highlight what they perceive as an insufficiency of supply of magistrates courts at a local level. I have to say to hon. Members that decisions on where courts should be located are based on much more than simply local authority council areas. Local authorities vary greatly in size and geography: some metropolitan councils are enormous and some local councils are very small. It is not fair or equitable to base a strategic decision on court location simply on the basis of where a local authority boundary lies. The clauses on the unification of courts administration will help, and better use of the courts estate and of non-court buildings will allow more appropriate and flexible approaches to be taken, potentially allowing magistrates courts to be located in future where none exist at present. There are a number of other reasons why these amendments should not be accepted, not least because they refer to the United Kingdom whereas the clause extends only to England and Wales, but I do not want to fall back on the old issue of deficiencies in drafting. Suffice it to say that at present we have 388 magistrates courts in England and Wales and 352 unitary authorities, district councils and boroughs. Although I am sure that not every council area has a magistrates court within it, it is most likely that the vast majority of them do.

Amendment No. 50, tabled by the Opposition, rather oddly suggests that the annual report that the Lord Chancellor must produce should include a report on the whole of the legislation and on other changes since May 1997. The scope of the proposed annual report is already wide. It will be an annual report into the efficiency and effectiveness of the court system. It is quite odd to suggest that the focus should be on this Bill when it is not just about the court system or unification of the courts administration, but contains provisions about the Northern Ireland Official Solicitor and the process for making periodical payments for civil damages. The legislative vehicle is not the best vessel to mirror if we are aiming to produce a well-written, well-structured annual report.

It is also interesting that Opposition Members have picked May 1997 as the start for the court system report. It is tempting to consider what activities took place before that date, but perhaps comment on those adverse circumstances is best left to another occasion.

The amendment also calls for an independent analysis of the effect that the Bill and other pieces of legislation since 1997 have had. We already have a robust process for audit and scrutiny. The Government are not against independent scrutiny. The new Constitutional Affairs Committee was established earlier this year under the august chairmanship of the right hon. Member for Berwick-upon-Tweed—I say that because I have not yet appeared before the Committee; who knows I might change my view. With the publication of the reports of the magistrates courts service inspectorate and the National Audit Office, there are already ample opportunities for independent scrutiny. Amendment No. 50 does not stand the test of what is required.

Amendment No. 55 is significant in that it suggests that fees prescribed in civil courts cannot be used to recover the cost of judicial salaries or the notional cost of using heritage buildings, which are presumably listed buildings. Although it is a slightly separate matter, it is important to consider the context. Fees are prescribed in the civil court justice system because, unlike in the criminal courts, cases are brought by private individuals or bodies seeking damages and redress, rather than on the basis of public interest. The Government have a long-standing policy of seeking to recover the full cost of the civil court services provided, including judicial salaries—something that was decided in 1992—and the notional cost of using buildings in the court estate, as decided in 1982.

That policy is based on the general principle that parties to cases are expected to pay the full cost of that part of the civil justice system that they use to resolve their private disputes. Recovering those court costs through fees ensures the protection of taxpayer resources, which can best be targeted at priority areas for the public benefit. To exclude the elements in question would understate the true cost of the service by about £130 million a year for the cost of civil judicial salaries alone. No doubt that would all be paid for by the top rate of tax to be imposed by the Liberal Democrats. It is worth totting that up as a spending commitment for future reference.

The amendment would institute a subsidy of that sum—and more besides—for all types of civil cases, including business cases brought by large corporations. A far better system than that crude subsidy is one in which exemptions and remissions are based on need, as they are in the case of the family proceedings subsidy or the 5 million people who are eligible for automatic exemptions from fees because they are receiving working family tax credit, pension credit, income support and so forth. That is a better approach than excluding whole categories of costs from the fees that should be paid by litigants. It is perfectly reasonable for fees to include a recovery element, and to look for full recovery of costs to cover those matters. I hope that the amendment is rejected and that the House will not accept this group of amendments.

5:30 pm
Photo of Mr David Heath

Mr David Heath (Somerton and Frome, Liberal Democrat)

With the leave of the House, I should like to say that we have had an interesting little debate. I am most grateful to Mr. Hawkins for his support, and that of his colleagues, and to my right hon. Friend Mr. Beith, whose analogy of the Lord Chancellor as a stripper with a train to catch will live long in my memory. The next time I see the noble Lord Falconer, I shall try hard not to let that image form in my mind as I am speaking to him.

I understand the frustrations of Mr. Howarth with the legal system; I often share them. He is not the only one to have experienced cases such as these, as he knows. I have no difficulty accepting that there is a proper place for criticism of the system as a whole and, sometimes, of individual decisions. Indeed, the judiciary is sometimes guilty of the charge of a degree of unwarranted complacency. I recall that Lord Hewart told the Lord Mayor's banquet in 1936 that

"His Majesty's Judges are satisfied with the almost universal admiration in which they are held."

I would not suggest that that is necessarily a statement of the current position; nor would I suggest that many present-day judges would be quite so complacent about the esteem in which they may or may not be held by the public. There is, however, a clear division between criticism and pressure from a person in a position of authority—that is, a Cabinet Minister, or the Government as a whole. That was the distinction that I was trying to draw.

Photo of Mr George Howarth

Mr George Howarth (Knowsley North and Sefton East, Labour)

I would not want the hon. Gentleman to think that I believe that the Secretary of State should be able to bring pressure to bear in any particular case. I was using the case that I mentioned to illustrate a general principle, namely that the courts do not seem willing to deal with these serious matters in a serious manner.

Photo of Mr David Heath

Mr David Heath (Somerton and Frome, Liberal Democrat)

I am grateful to the hon. Gentleman for that intervention, and I do not think that there is much between us on this issue. When we return to the question of sentencing guidelines councils in the context of the Criminal Justice Bill, on which there has been broad agreement between the Front Benches and Back Benches of all parties, we shall see that there is a case for not only the Executive, but the House having some sort of handle on what happens in our courts—as long as it does not go further and compromise the independence of the judiciary in coming to their legal decisions.

Amendment No. 55 deals with the full recovery of costs. The Minister does not seem to accept the idea, which I think is self-evident, that there is a common good in having disputes settled through the legal process. A moment's thought will surely tell us that we are better off living in a country in which these issues are arranged through the courts rather than through fisticuffs, which is often the alternative. There is, therefore, a proper role for the Government in supporting that function. That was always accepted without question until relatively recently—full cost recovery was introduced only relatively recently—and the justification for refusing any support to the system is a flimsy one indeed.

On the second and perhaps more substantial point of accessibility, this is a matter that we debated long and hard in Committee. Opposition Members are absolutely clear that, whatever the Minister's protestations, a general duty of accessibility needs to be written into the Bill. Judging by what the Minister has said, he does not seem to have a problem with that, because he believes that that is being achieved in any case. The only thing that he does not like is the word that we want to insert into the Bill. He said that we could have a long debate on the words that could be added, but we do not need to do that. We just want one word: "accessibility". I also believe that the House wants that word to be added, and should I have the opportunity later, I should like to test the opinion of the House on that matter.

I think I have said enough on independence. The Minister asks that we do not pre-empt the consultation process on his White Paper. I believe that constitutional principle pre-empts administrative arrangements. The Lord Chancellor has had a specific role in maintaining judicial independence. Given that that will inevitably be lost in the process of reform, we must ensure that it is stated in some form in statute. We have the support of the Select Committee and the judiciary, which acutely feels under threat. In the light of that, the House should express an opinion.

Question put, That the clause be read a Second time:—

The House divided: Ayes 122, Noes 284.

Division number 327

See full list of votes (From The Public Whip)

Question accordingly negatived.