Civil Proceedings and Family Proceedings Fees (Amendment) Order 2015

Debate between Lord Phillips of Sudbury and Lord Scott of Foscote

Wednesday 4th March 2015 Lords Chamber

[Lord Scott of Foscote (CB)]

My Lords, I had prepared a speech in support of the amendment of my noble friend Lord Pannick. However, having regard to the speeches that your Lordships have already heard from not only the noble Lord, Lord Pannick, but from the noble Lords, Lord Beecham and Lord Marks, and the noble and learned Lord, Lord Brown of Eaton-under-Heywood, I will confine myself to asking four questions of the Minister.

First, does the Minister agree that respect for the rule of law by at least the majority of those living in this country is an essential requirement if this country is to continue to rank as a civilised country in which it is a pleasure and a privilege to live? Secondly, does he also agree that those who for reasons of lack of necessary funds are denied access to justice in our courts cannot expect to have or to retain respect for the rule of law? Thirdly, if the Minister agrees with those two previous questions, which seem to me self-evident, how can he justify increasing the cost of litigation to a level that will deny access to justice to a large number of people? The fourth question arises out of the terms of Section 92(3) of the Courts Act 2003, which states that in setting fee levels,

“the Lord Chancellor must have regard to the principle that access to the courts must not be denied”.

Does the Minister accept that principle? If he does, as I am sure is the case, how does he justify a fee of as much as £10,000 for the commencement of a civil action? If he does not accept that principle, how does he justify his retention as a Minister in the office of the Lord Chancellor?

[Lord Phillips of Sudbury (LD)]

My Lords, I thank the noble Lord, Lord Pannick, for tabling this amendment, which I believe is very important—although I note that only those who are speaking are present tonight. I declare an interest as the founder and president of the Citizenship Foundation, a national charity which seeks to prepare young people in our schools for the life they are to lead beyond them by giving them a broad and very basic understanding of the laws of our land. I am also a co-founder of the Legal Action Group, which is to this day a tower of strength in seeking to advance and protect legal aid. The group is fairly desperate about this order, I have to say.

I accept that it is extremely difficult for my noble friend to have to move the Motion on this order tonight. I know him to be as concerned about equal justice as anybody. I also readily accept that the Government have a lousy task in seeking to balance the national books in a way that does not cause mayhem all round. But having said all that, like others I believe that if ever the word “fundamental” is justified, it is justified in regard to protection of the rule of law and equal justice. I maintain that we cannot claim to be a proud democracy which upholds the rule of law when we know that so many of our fellow countrymen cannot access the laws that we in Parliament legislate for them. Knowing that as we do—there is no lack of evidence on that—it strikes me as being almost a case of defrauding the public for us to go on as we do, enacting legislation for which we make all sorts of claims while knowing that so many of our countrymen will not get near to exercising those rights. That is why all of us have spoken so passionately. We all know that the law is now so voluminous, hypercomplex and intrusive that to pretend that poor or middling citizens do not have need of access to lawyers and the courts is just cloud-cuckoo-land. Indeed, quite a bit of research has been done recently into citizens’ need for legal services and access to justice. That comes up with a figure of about one-third of the population being in that bracket.

I must also agree with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who very pertinently observed that we must all have been asleep when Clause 180 of the then Anti-social Behaviour, Crime and Policing Bill was enacted. This was an astonishing clause and I do not think that anyone in this House really had a go at it. Yet how can one conceivably agree to a principle that we make a profit out of justice? How can that have gone through this place? Indeed, I wonder whether it is a provision that could withstand oversight of the courts on human rights grounds, quite apart from those being advanced on behalf of the Law Society; I am very happy to see that my professional body is doing that.

Section 180 of the 2014 Act makes no reference to justice at all. Subsection (3) says that,

“the Lord Chancellor must have regard to … the financial position of the courts … and … the competitiveness of the legal services market”.

Subsection (6) says that the surplus made from increased fees—those parts of them that are intended to generate a profit—must go, as my noble friend Lord Marks said, to improving the efficiency and effectiveness of the system of our courts and tribunals. There is nothing to do with the justice of the system. At no point is there any reference to justice. It makes me wonder whether there might be some defect there in terms of basic law. I may have to reinstruct the noble Lord, Lord Pannick, as I used to about 40 years ago. I hope he will give me the same jolly opinion.

Reference has already been made to Magna Carta by a number of speakers. I do not propose to make further reference to it, but we must accept that the cuts in legal aid made last year have knocked one-quarter off the legal aid budget, I believe. The ones that we are dealing with now will affect huge numbers of claims. The scale of the problem is that there are currently 235,000 claims for possession every year; 370,000 money claims via the court are potentially caught by this order; and there are 160,000 general applications in other proceedings.

One aspect of the Government’s impact assessment really caught my eye. Other noble Lords have made reference to it, but not to this set of facts. In one of the consultation documents we learn that the consultation took place in December and January—over Christmas and the new year. Is that not well designed to have a maximum response? The first question in the questionnaire is:

“What do you consider to be the equality impacts of the proposed fee increases (when supported by a remissions system) … ?”.

How many people do noble Lords suppose answered that first, key question? Seventy-six. It is verging on the scandalous to undertake the measures in this order on the basis of 76 respondents. And how many of them thought that the equality issue was adequately dealt with? Less than half. So you have 30-odd people and organisations approving of the central measure which is the subject of this order tonight.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Phillips of Sudbury and Lord Scott of Foscote

Wednesday 9th February 2011 Lords Chamber

[Lord Scott of Foscote]

My Lords, I rise simply to say a word about the possible effect of litigation on the timetable proposed for litigation. The possibility of delay was mentioned by my noble friend Lord Pannick, who has great experience in this field. It is my experience that the prospect of obtaining a favourable end result to the litigation is not the only reason why people commence litigation. Both as a barrister and as a judge, I remember cases in which litigation was commenced not with any realistic prospect of success at the end but simply for the purpose of achieving delay. Where judicial review is concerned, the permission of a judge is required. So the applicant goes in front of the judge and sets out his case, asking for permission to start judicial review. Sometimes a judge will grant him permission when he ought not to have done. The noble Lord, Lord Pannick, proposed the likelihood that permission would be refused in the cases of judicial review as a result of this amendment, and I do not dispute that—but there might be a judge who would grant it. If permission is refused, the applicant can then renew his application for permission in front of the court of appeal and try again. Throughout this process, which will take a little time, whatever expedition might be granted by the courts, the pending litigation will deter the Boundary Commission from getting on with its job.

I support the amendment—or at least I think I do; I am listening carefully to the arguments for and against—but I would not wish this House to proceed on the footing that a degree of delay might not be occasioned by litigation of the sort that I have described, which may be vexatious litigation.

[Lord Phillips of Sudbury]

Would it be unfair to ask the noble and learned Lord to utilise his vast experience of judging to comment on the point just made by my noble friend Lord Rennard as to whether the definition of a viable constituency would be an issue that delayed a competent lawyer for some considerable time, especially if paid per diem?

[Lord Scott of Foscote]

A competent lawyer will give an opinion on that after he knows the facts. The notion that the constituency proposed is not viable will have to depend on facts, some of which are bound to be much stronger than others. As a general proposition, the question of what a viable constituency is and is not will be a subjective matter and one properly for the Boundary Commission. Whether there was an angle that would allow an attack to be launched would depend on the facts of an individual case and is not something that could be answered in the abstract.