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

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

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

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

Amendment, by leave, withdrawn.

[Amendments Nos. 125 to 130 not moved.]

Clause 83 agreed to.

Clauses 84 and 85 agreed to.

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

[Amendment No. 131 not moved.]

Clause 86 agreed to.

Clause 87 [Fees]:

Lord Hunt of Wirral moved Amendment No. 132:

    Page 41, line 26, at end insert—

"( ) In prescribing fees payable under subsection (1), the Lord Chancellor shall have regard to the need to facilitate access to justice."

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

I have had the benefit of looking at the Civil Justice Council's paper on full costs recovery produced by its fees sub-committee. It makes this very clear statement:

    "The Civil Justice Council has given detailed consideration to the Government's policy of raising almost the full cost of the civil court costs through fees levied on users, and concluded that this policy is not consistent with its aim of ensuring access to justice".

The fees sub-committee continued in these terms:

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

There could not be a clearer statement. Therefore, I hope that noble Lords will understand the importance of the amendment, which seeks to insert at the end of line 26, page 41, the words:

    "In prescribing fees payable under subsection (1), the Lord Chancellor shall have regard to the need to facilitate access to justice".

In an earlier debate, I warned the Minister that I would seek to quote not only the noble and learned Lord the Lord Chief Justice but also the noble and learned Lord the Master of the Rolls. I pointed out that I am not aware of the precise nature of the various precedents, but I believe that it was unusual for the Master of the Rolls, the noble and learned Lord, Lord

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Phillips of Worth Matravers, to agree to speak to Jeremy Paxman on "Newsnight" about the civil justice system. In that interview, when asked by Mr Paxman:

    "What is your assessment of the shape [the civil justice system] is in?",

the noble and learned Lord the Master of the Rolls replied, saying two different things. He said:

    "It is creaking at the seams because of lack of resources. The Treasury has introduced, without any parliamentary debate or discussion, a complete change. Yes, it is the job of the state to provide a health service and to provide education. It is not the job of the state to provide a civil justice system. The litigant has to pay"—

so say the Government—

    "in court fees for the cost of maintaining these buildings and for the judges".

The noble and learned Lord the Master of the Rolls continued:

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

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

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

I hope that I do not have to remind noble Lords of the words used by the noble and learned Lord the Lord Chief Justice when he said that the present accommodation of the commercial court is a disgrace. That was his word, "disgrace". He stated:

    "Throughout England and Wales, courts are deprived of the technology which has been repeatedly promised and which should be at the heart of the civil justice reforms".

Noble Lords will remember that we are talking about the architect of the civil justice reforms. He went on to say:

    "Those courts are struggling to provide an adequate service, relying on the loyalty of the judiciary and the staff . . . It is forgotten that at stake can be a member of the public's home, a widow's damages or a citizen's human rights".

The noble and learned Lord the Lord Chief Justice concluded:

    "That position is not tolerable".—[Official Report; 9/12/02; col. 28.]

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Looking back to a rather special day, I asked a very special Question in this House. On 26th April 1999 I asked the noble and learned Lord the Lord Chancellor whether he considered that all necessary systems and resources were in place for the introduction that day of the civil justice reforms of the noble and learned Lord, Lord Woolf. That was on the day they were introduced; namely, 26th April 1999. In seeking to assure us that all the necessary systems were in place, the noble and learned Lord the Lord Chancellor admitted that the IT system was not quite ready. He stated:

    "I expect a full administrative IT system to be in place during 2000".—[Official Report, 26/4/99; col. 5.]

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

On the previous Committee day I reminded the Minister of the words of the noble Baroness, Lady Scotland of Asthal, in reply to the Second Reading debate. Referring to the Lord Chief Justice, she stated:

    "The noble and learned Lord, with his usual precision, has highlighted a number of issues that I am sure will excite our interest for some time".

She continued with that memorable phrase that I have quoted to her before:

    "I dare not go further".—[Official Report, 9/12/02; col. 83.]

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

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

9.30 p.m.

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

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

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

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

Clause 97(4)(c) proposes that a statutory instrument containing,

    "an order under section 87 . . . is to be laid before Parliament after being made".

In other words, it is not subject to any form of parliamentary control.

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

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

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