Clause 92 - Fees
Courts Bill [Lords]
2:30 pm
Mr Christopher Leslie (Parliamentary Under-Secretary, Department for Constitutional Affairs; Shipley, Labour)
First, I will address amendments Nos. 146 and 147. Clause 92(2) was added in another place, and it has the effect of making it a statutory requirement that
''the Lord Chancellor shall have regard to the need to facilitate access to justice''
when prescribing fees in a civil court.
After very careful consideration, the Government have come to the conclusion that although subsection (2) is not strictly necessary as it simply confirms what is already the position, its effect should be included in the Bill. The Lord Chancellor's fee policy principles, announced to Parliament in 1998, enshrine the Government's assurance that fees should not prevent access to justice and that litigants of modest means should be protected.
In addition, in the Witham case, the Court of Appeal 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. Automatic exemption is available for litigants on specified means-tested benefits or tax credits. Those who do not qualify for exemption but who would suffer hardship if required to pay fees—or pay them in full—may be granted discretionary remission in full or in part. In addition, a public subsidy has already been introduced for certain types of family proceedings.
Clause 92 includes, for the first time, an express power to exempt or remit fees. That, along with any new fees orders, will be subject to wide consultation with 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.
In recognition of the importance of ensuring that the less well-off in our society can obtain access to justice, we wish to concede and go along with the spirit of the amendment that was tabled in the other place. However, we are still worried about the wording of subsection (2). As currently drafted, it is deficient in that it is in the wrong place in the clause and too narrow in scope. We want to ensure access to justice for the less well-off through the system of exemptions and remissions under subsection (3).
However, subsection (2) as drafted requires the Lord Chancellor to have regard to the need to facilitate access to justice only when prescribing fees under subsection (1). He is not required to have such regard when providing for exemptions or remissions by virtue of subsection (3). That deals with problem of the subsection that was added in another place being in the wrong place.
The amendment will ensure that the Lord Chancellor must have regard to the principle that access to the courts must not be denied, when including a provision in an order under the clause. That will, for the first time, place the common law position established by the Witham case in the Court of Appeal on a statutory footing. That was urged on us, not least by the Select Committee on the Lord Chancellor's Department when it considered the Bill. I am glad that we have been able to respond to some of its worries. It is the Government's view that those who can afford to meet the cost of the part of the civil justice system that they are using should be expected to do so. Those who cannot will be supported by a system of exemption, remission and reductions.
Amendment No. 148 is a consequence of subsection (11), which was added in another place and will prevent judicial salaries from being taken into account when setting fees. A statutory provision stopping the recovery of the costs of judicial salaries when prescribing fees would be an undesirable obstacle to the Lord Chancellor's powers in exercising his ministerial responsibilities. 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 full cost of the part of the civil justice system that they are using to resolve their disputes. The general policy of recovering most of the costs of the courts through fees ensures the best targeting of scarce public resources. These are public expenditure decisions for the Government.
The Government's policy of setting fees and charges is set out in the Treasury's fees and charges guide. The guide explains that fees should be set to recover the full cost of the individual services provided, subject to any agreed subsidies. The existing subsection (11) would provide a subsidy for all types of cases, including business cases brought by large corporations. 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 to ensure access to justice than excluding whole categories of costs from what should be payable by litigants.