Anti-social Behaviour, Crime and Policing Bill

Lord McNally Excerpts

Wednesday 11th December 2013 Lords Chamber

[Lord Beecham (Lab)]

My Lords, I rise to move the amendment in the name of my noble friend Lord Ponsonby, who cannot be in his place tonight. I shall be uncharacteristically brief. My noble friend draws the attention of the Committee, and indeed mine, to an anomaly in the present situation on victim surcharge orders. The payment may be ordered to be made by the parents of a young offender who are themselves the victims of a crime. That situation cannot possibly have been envisaged originally, but it appears to be the case and there seems to be no court discretion to avoid imposing what many of your Lordships would feel is a ridiculous outcome. The noble Lord may not be able to accept the amendment tonight, but I hope that he will look at it, as it seems to be anomalous and ought to be corrected.

[The Minister of State, Ministry of Justice (Lord McNally) (LD)]

My Lords, let me confirm at once that the noble Lord, Lord Beecham, has been uncharacteristically brief. I am sorry that the noble Lord, Lord Ponsonby, was unable to move his amendment because I know of his deep and continuing concern on these matters.

The Government are determined to provide the best support for victims of crime, which must be properly funded, but increasingly by offenders rather than taxpayers. In 2010-11, offenders contributed less than £1 in every £6 of funding that supports victims’ services. We intend to raise up to an additional £50 million from offenders to pay for services to support victims of crime. That is why we brought forward reforms to the victim surcharge last year, following public consultation, to ensure that all offenders bear a greater proportion of the cost of victims’ services. Proceeds from the surcharge are ring-fenced to fund support services for victims and witnesses. From October 2012, the victim surcharge for adult offenders was increased when ordered with a fine and extended to a wider range of in-court disposals such as conditional discharges, community sentences and custodial sentences. Similar provision was made for juvenile offenders who even before the changes made in 2012 were required to pay the surcharge when sentenced to a fine.

A key point of the victim surcharge is that all offenders, including juveniles, take responsibility for their offending behaviour and make a contribution towards funding victims’ services. Juveniles have therefore always been within its scope and I do not believe that it would be right to introduce discretion to exempt them. Having said that, I recognise the concerns of the noble Lord about the practicalities. When the offender is a juvenile, Section 137 of the Power of Criminal Courts (Sentencing) Act 2000 provides that the parent or guardian might become liable to pay a financial order made by the court. There may, therefore, be circumstances where the parent or guardian of a juvenile becomes liable to pay the victim surcharge when they have been the victim of the offence. We recognise the issue that such cases raise.

Let me reassure the noble Lord that the court does have the discretion not to order the parent or guardian to pay the surcharge if, having regard to the circumstances of the case, it considers that it would be unreasonable to do so. While the court would still need to order the surcharge in respect of the juvenile, there are a number of options open to it when it comes to payment. In this vein, the Justices’ Clerks’ Society issued a circular to its members in June this year outlining some of these approaches. These could include inquiring as to any income the offender may be receiving, particularly if they are older juveniles, in which case responsibility for paying the surcharge would fall directly to the young person. Additionally, in exceptional circumstances, the court has the power to defer payment of the surcharge until such time as it considers the offender would be able to pay it, again making responsibility for paying the surcharge the offender’s rather than that of his or her parents.

We believe that it is right that all offenders, including those aged under 18, should take responsibility and make greater reparation towards the cost of victim support services as a result of their actions. It is therefore appropriate that the surcharge should continue to be ordered when a court deals with an individual, whether as an adult or a juvenile. I hope that I have been able to reassure the noble Lord on the points he raised and that he will be content to withdraw his amendment.

[Lord Beecham]

My Lords, I am grateful for what I might best describe as an uncharacteristically helpful and informative response from the noble Lord, which I undertake to convey to my noble friend. We are, of course, entirely with the noble Lord and the Government in wanting to ensure that victims are compensated, especially by those who wrong them. He has adequately explained the situation and my noble friend’s fears seem to be unfounded. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Beecham]

My Lords, I shall also speak to Amendments 95AB, 95BA and 95D in relation to the issue of court and tribunal fees. At Second Reading I described the Bill as not so much a curate’s egg as a curate’s omelette, comprising as it does so many ingredients, both good and bad, mixed up together. It is perhaps fitting that the Committee should end with a debate on a clause which impels me to produce another culinary analogy, for this clause and the process which has informed it can best be described as half-baked.

It is perfectly reasonable to update the fees for proceedings in courts and tribunals to keep pace with inflation and, in appropriate cases, to seek full-cost recovery, provided there is a reasonable and effective scheme for the remission of fees, in whole or in part, for those of modest means or less. Equally, I have few qualms about fees in cases such as those in the commercial court which the Government are anxious to promote internationally as a forum of choice, but the approach of the Government to this clause has been cavalier in the extreme.

On 4 December the Minister wrote to me to say that the Government had launched a consultation on the provisions of Clause 155, as announced the previous day, that is to say four working days before the clause comes to be considered by this House. Had progress been quicker on earlier clauses, we would have reached this clause on the very day that the Minister’s letter reached me. The consultation, incidentally, is to last seven weeks, including the Christmas and new year period. It will end on 21 January, by which time we will presumably have reached Report, if not concluded it, and there will be little or probably no time at all for the Government to give their response before the Bill’s final stage is reached.

That is not all. Impact assessments for these proposals published on 2 December say next to nothing about the impact on claimants applying to tribunals or to the courts, as opposed to the amounts the Government hope to rake in from increased fees. The Government’s attitude to consultation is underlined by paragraph 20 of the current consultation paper which refers to an earlier consultation, CP15/2011, Fees in the High Court and Court of Appeal Civil Division, to which, the consultation paper records,

“the Government has not yet responded”

after some two years, and which are, the consultation paper says, “superseded”—without, I may say, any explanation—by the current proposals.

The saga does not end there—perhaps I should say does not start there—for the Government launched yet another consultation last April, this time on fee remissions for courts and tribunals, with a four-week period for responses, and published their response, conveniently, no doubt, for them on 9 September, when Parliament was in recess. Interestingly, that document introduced a disposable capital test and airily dismissed concerns that this might have a deterrent effect on claimants. There is, incidentally, currently concern about an apparently significant drop in employment tribunal claims following the hotly contested introduction of fees, which were widely regarded as too high. Perhaps the Minister would save me the trouble of tabling a Question by agreeing to write to me in the new year with details of the number of claims before and after the imposition of charges. It is, after all, an analogous situation to that which this clause deals with.

The Government’s latest consultation paper refers to interviews and research, both of which are said to have been the subject of a full report published alongside the consultation, but for which no references are given. Painting, as ever, with a broad brush, the Government say that they believe,

“that all those who issue a court case benefit equally from the existence of the civil justice system as a whole and should share in contributing towards its indirect costs”,

and, therefore, they divide the indirect costs of the system between all cases that are issued. It is not clear to me whether the apportionment applies equally to all cases, or whether it is in some way proportionate to the amount claimed. On the face of it, this looks very like the application of the principle of the poll tax to the cost of making a claim to a court or tribunal.

Paragraph 60 of the consultation proposes to combine the fees for issue and allocation to a track—the small claims track, fast track or multi-track—without any clear explanation of the rationale. Paragraph 63 acknowledges that the hearing fees for the higher track cases are higher than the average cost of such, but it does not propose to adjust them, thereby importing the concept of more than full-cost recovery by the back door. In divorce cases, while the Government say, at paragraph 71, that they will maintain the issue fee at £410, already above the actual cost price of £270, they will impose an extra charge of £300 to cover the cost of the remainder of the proceedings. Given that, in many cases these will be a mere formality, this looks suspiciously like another example of more than full-cost recovery, though not, of course, for the complex cases where there are major issues as to income and property, where such charges might be thought to be not unreasonable.

Ominously, the Government propose changes to the fees in money claims, including, no doubt at the behest, yet again, of their friends in the insurance industry, in personal injury cases. They go so far as to say that their proposals, if applied in their entirety, would lead to reduced fees on claims of around £10,000 or less but, typically, they will not be changing those fees.

The Committee will understand that there are many questions about these proposals, but there is an overriding question about the abuse of the legislative process which, not for the first time, is being perpetrated by this Government. I acknowledge and welcome the concessions made in the Government’s amendments as far as they go. They will ensure that any increase in fees other than inflation-related increases will have to be approved by affirmative resolution, and that is a welcome improvement. But will the Government consider the amendments I have tabled, which seek to ensure that access to justice is a prime consideration before setting the size of the fee increases, and that the remission arrangements are properly scrutinised and agreed? Will they revise the existing remission arrangements in the light of the proposed major changes, and will they review the proposals to take disposable capital into account?

Given the shambles of the process thus far, I have to say that on Report the Opposition may well press for a sunrise clause along the lines of Amendment 95D to ensure that there is proper parliamentary scrutiny of the complete package when its final contents are developed. As I say, that is unlikely to be the case before this Bill receives its Third Reading.

In addition, in the mean time it will be helpful to know whether, in the indefinite age of austerity that the Chancellor has decreed for public services, the principle of full-cost recovery, and especially of more than full-cost recovery, will be extended to other services such as further and higher education, prescription charges or other parts of the health service. By what logic, one wonders, would the Government differentiate between some of the proposals they are making in this Bill, incorporating more than full-cost recovery for access to justice, and those or other public services? I beg to move.

[Lord McNally]

My Lords, I shall not try to follow the noble Lord, Lord Beecham, down his culinary route. One of the pleasures of responding to the noble Lord is that it is almost like doing a school exam. So many questions are fired at you in quick succession. If I do not cover them all in this reply, I will carefully read what he has said, note the question marks that Hansard inserts and try to send suitable replies, including on the point he made in opening about the figures for claims at employment tribunals after the introduction of charges.

Perhaps I may deal first with the two government amendments in the group, namely, Amendments 95B and 95C. These give effect to the recommendation made by the Delegated Powers and Regulatory Reform Committee relating to the power to charge enhanced court fees. Clause 155 currently provides that, when the power to set a fee or fees at an enhanced level is used for the first time, the relevant statutory instrument should be subject to the affirmative resolution procedure, with any subsequent changes to the fee or fees being subject to the negative procedure. The Government’s intention was that the principle of charging an enhanced fee should be subject to a full debate in Parliament, after which the negative procedure would provide the necessary level of parliamentary oversight for any subsequent changes to the fee.

However, the Delegated Powers and Regulatory Reform Committee was concerned that this would provide the Lord Chancellor with a very wide discretion to set the level of fees. Although the legislation requires the Lord Chancellor to have regard to the financial position of the courts and tribunals and to the competitiveness of the legal services market when setting fees, the committee felt it was possible that, in future, very different considerations might apply and that these should be taken into account. The committee therefore recommended that the power to set an enhanced fee should be subject to the affirmative procedure unless the amendment is being made solely to reflect the change in the value of money. The Government agree that this change would be appropriate and, accordingly, Amendments 95B and 95C will implement this recommendation.

I turn now to the amendments in the name of the noble Lord, Lord Beecham. Amendments 95AA and 95AB seek to require the Lord Chancellor to have regard to the principle of “access to justice” when setting fees. I can wholeheartedly agree with the noble Lord that this is an important consideration. However, the Lord Chancellor is already under a duty to do exactly this when setting fees under Section 92 of the Courts Act 2003. Subsection (3) of that section provides that the Lord Chancellor,

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

Amendment 95BA seeks to make the remission scheme subject to the affirmative resolution procedure. As noble Lords will be aware, there is already a remission scheme in place. Indeed, the scheme has been in place for a number of years, but was updated and revised as recently as 7 October 2013 when the Courts and Tribunals Fee Remissions Order 2013 came into force. It is the Government’s intention that the existing remission scheme will continue to apply in all cases where enhanced fees would be introduced.

The current scheme provides for certain court and tribunal fees to be remitted in whole or in part where litigants meet certain criteria based on their disposable capital and gross monthly income. The existing scheme is made under the same order-making powers as apply to the setting of fees, for example, Section 92 of the Courts Act 2003, which relates to fees payable in respect of proceedings in the senior courts, county courts and magistrates’ courts. As the remission scheme relies on the same order-making powers as the statutory instruments prescribing court and tribunal fees, they are subject to the same level of parliamentary procedure—namely, the negative procedure. In its seventh report of Session 2002-03, the Delegated Powers and Regulatory Reform Committee welcomed a government amendment to make the order-making power in what is now Section 92 of the Courts Act 2003 subject to the negative procedure. Given that previous endorsement by the committee, and the fact that the current arrangements have been in place for some years, I see no good reason why we should now alter the level of parliamentary scrutiny.

Finally, Amendment 95D would require the Lord Chancellor to report to Parliament on the outcome of the public consultation on these proposals and to obtain approval for its response. As the noble Lord indicated, the Government on 3 December set out their detailed proposals for using the power to set enhanced fees in the consultation paper, Court Fees: Proposals for reform. This seeks views on a series of proposals for charging enhanced fees, including for money claims, in commercial proceedings and for divorce, alongside proposals for reducing the current deficit of £100 million in the cost of running the Courts and Tribunals Service. The consultation closes on 21 January. In the normal way, we will publish a response to that consultation in due course and Parliament will have an opportunity to consider it when we lay a draft order under Clause 155. I therefore take Amendment 95D as a probing amendment rather than an attempt to enshrine in statute the normal process of reporting on the outcome of a consultation.