Civil Proceedings Fees (Amendment) Order 2021

Lord Wolfson of Tredegar Excerpts

Monday 19th April 2021 Grand Committee

Moved by

[Lord Wolfson of Tredegar]

That the Grand Committee do consider the Civil Proceedings Fees (Amendment) Order 2021.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

This instrument aligns the fees for online and paper civil money and possession claims. The instrument applies to fees in the civil courts of England and Wales and will come into force in May 2021.

First, I shall say a word or two about the purpose of the instrument. Her Majesty’s Courts and Tribunals Service plays an essential role in our society. Courts and tribunals provide a place where people can vindicate their rights and where the rule of law is upheld, and which is accessible to all who need it. I am proud to say that our courts and tribunals deliver a world-class justice system which is admired by all. The people it serves interact with it at some of the most difficult times of their lives and they trust it to be fair and effective.

For many years, the service has run on the principle that those who use courts and tribunals should pay the full cost of the service they receive, if they can afford to do so. I am sure that the Committee will agree that fees are a reasonable means of ensuring an effective and efficient justice system that is neither solely nor entirely sustained by contributions from the taxpayer. Fees are the main source of direct income for courts and tribunals, and the instrument I am submitting to the attention of the Committee today will further aid this endeavour.

Civil money and possession claims, which are the type of claims affected by this instrument, are regulated by the Civil Proceedings Fees Order 2008. Currently, the fees order offers lower fees, and some exemptions, for civil money and possession claims submitted via online platforms, with a higher fee payable for the same claims issued via the paper route. The instrument before us today removes the online discount and thus aligns the online fees with the paper fees which are currently charged in the Civil Proceedings Fees Order. More specifically, this instrument aligns fees for users of the County Court Business Centre, Money Claim Online, Possession Claim Online and online civil money claims.

Aligning these fees will create a single fee structure which will result in one, consolidated fee, payable by both online and paper users. In doing so, it will also provide much-needed additional funding to our courts and tribunals service. The need to ensure that courts and tribunals continue to perform efficiently and effectively is compounded by the challenges we are facing due to the pandemic.

This, therefore, is the right time to consolidate these fees. The online services were first introduced 20 years ago, in 2001, as part of the Government’s ambitious plans to digitise the service and contribute towards improved performance and increased functionality, while streamlining existing processes. To encourage uptake of what was then a new digitised system, a number of fee discounts for the online processes were introduced. They have therefore been enjoyed by users for many years. Users who issue bulk claims have had a discount on the issue fees since 2004, fees for claims issued via Possession Claim Online have been discounted since 2006, and fees for claims issued via Money Claim Online have been discounted since 2015.

I am pleased to say that the Government’s efforts have paid off. In 2018-19 online applications for civil and possession claims accounted for just under 90% of all claims up to the value of £100,000. So, the modern service is allowing 90% of users to enjoy a seamless journey from lodging a claim right through to settling the dispute as simply as possible. As part of this, users have the opportunity to access mediation as part of efforts to support more proportionate and appropriate dispute resolution.

The Committee will need no reminder from me of the Lord Chancellor’s personal and statutory duty to protect access to justice. The Government remain committed to upholding this fundamental principle, so we must provide an effective and efficient justice system that works for everyone. That means it has to be funded appropriately.

Removing the online discount does not infringe the principle of access to justice. Paper users are already paying a higher fee, and generally those individuals are over-represented among groups with protected characteristics. So, while we want the system to be funded effectively, we also want to build a fairer system that puts neither paper nor online users at a disadvantage.

The Committee should be familiar with the fees we are debating. They are enhanced fees, meaning that they are set above the cost of the service. Such fees can be set only with explicit parliamentary approval, following the introduction of the “enhanced power” provision in Section 180 of the Anti-social Behaviour, Crime and Policing Act 2014. The enhanced power is therefore used in a judicious and limited manner, because most fees in courts and tribunals are set not under the enhanced power but at or even below the cost of providing the service.

The income raised from enhanced fees such as these enables us to cross-subsidise other parts of the courts and tribunals system. That enables us to ensure access to justice for everybody. We do so to protect the most vulnerable members of society. This is not an exhaustive list, but, for example, no fees are now charged for applications for non-molestation orders, occupation orders, forced marriage protection orders or female genital mutilation orders—or for cases before the First-tier Tribunal concerning mental health.

Despite the provision of these enhanced fees, the income currently received from fees covers less than half the costs of running the courts and tribunals. In 2019-20 there was a net fee income of £724 million, against running costs of about £2 billion. That significant gap in funding should highlight for the Committee why the fee increase that this instrument introduces is appropriate, balanced and fair.

Of course, I do not claim that the additional income generated by these proposals will, alone, fill the gap. But it will certainly help the justice system to be better equipped for the many challenges it faces and will supplement the additional funding already being provided by the Government to aid Covid-19 recovery.

I should emphasise that for the vast majority of fees affected by this instrument, the proposed increase is generally modest, ranging from about £10 to £45—and every pound can be reinvested in our ambitious plan for the future of the Courts and Tribunals Service. That is in addition to the £377 million for the criminal justice system in England and Wales, including £275 million to manage the downstream impact of 20,000 additional police officers and to reduce backlogs caused by Covid-19 in the Crown Courts. There is also an investment of £76 million to increase family court and employment tribunal capacity to reduce backlog, £43 million to ensure courts and prisons remain Covid-safe, and £105 million for improvements to the court estate.

The Committee will be aware of the unprecedented challenges that this country has faced because of Covid-19. However, it is important—indeed, critical—to ensure that our world-class justice system operates efficiently and effectively, while minimising the cost to the taxpayer. This instrument allows us to do more work to achieve that aim. It aligns fees for civil money and possession claims, contributes towards the funding of courts and tribunals, and ensures that the existing civil fee structure is both fair and consistent. I therefore commend these fee changes to the Committee.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful for the contributions to this short but important debate; anything to do with our justice system is important. Perhaps I may therefore pick up in turn the points made by noble Lords.

The noble Lord, Lord Blunkett, asked about the principle of cross-subsidy and the amounts involved. I shall deal with each point in turn. The principle of cross-subsidy is in primary legislation; it was considered by Parliament as a matter of principle and considered correct for those who can pay more than the actual cost of the process to do so, so that other people can pay less than the actual cost of the service. So the principle of cross-subsidy is in primary legislation, as I have set out.

As to the figures involved, the Courts & Tribunals Service produces an annual report. The accounts for the year ending 31 March 2020 show that approximately £550 million of fee income was collected from court users in civil proceedings after fee remissions, whereas approximately £545 million was spent on civil jurisdiction, leaving a surplus overall of £4.9 million. Civil business as a whole—that is, civil and family jurisdictions together—showed a deficit of £80.1 million in the financial year, which was funded therefore by the general taxpayer. I shall look at the Official Report and, if I can provide the noble Lord, Lord Blunkett, with any further detail on particular figures, I shall write to him and set it out and copy my letter to other noble Lords who spoke in this debate.

I turn to the contribution of the noble Lord, Lord Thomas of Gresford. This provision is not being slipped “under the radar” at all. I have to say that I was a little surprised that the import of the noble Lord’s comments appeared to be that those who did not have internet access or capability should continue to pay more—more, indeed, than 90% of users of the service. I find that a remarkable proposition, but it is the necessary import of the approach that the noble Lord took. That is even more remarkable when one recalls, as I said when I opened this debate, that the paper group, if I can call them that, contains more people with protected characteristics proportionately than the online group. When one has 90% of people online, one has to level the fees.

The only real question is whether you move the online to the paper or the paper to the online. The position is this: were we to move paper to online, that would cost another £5 million in lost income to the service, which is another increase that the taxpayer would have to fund and a greater loss that the courts and tribunals would therefore be working under. Although I agree with the principle of equalising fees, one ought to equalise online to paper and not paper to online. The justification for a lower fee for online users, which was originally brought in to encourage people to go online, is, for the reasons I have set out, no longer present.

So far as the stakeholders are concerned, it is fair to say that a minority of respondents supported the proposal, but the main sticking point was the principle of cross-subsidisation in the first place. As I have said, that principle was established by Parliament in the Act that I mentioned and is therefore the legal background against which we operate.

Finally, on the, if I may respectfully say, more realistic contribution from the noble Lord, Lord Ponsonby of Shulbrede, he will understand that I do not accept the adjectives he used about the Courts Service, but I certainly agree that, after Covid, we need to rebuild the Courts Service and ensure that people obtain in the courts and tribunals the sort of service they are entitled to expect. He focused on the victims of crime. While I do not minimise the issues which we have to deal with in the criminal justice system, I hope he will allow me to say that because this is a civil measure, I will not respond to those comments in detail today. I am sure we will have many opportunities in the Chamber and in Grand Committee to debate the criminal justice system, the Crown Courts and the magistrates’ courts, and I look forward to engaging with him—I am sure constructively—on those occasions. For today, the instrument before us focuses solely on civil justice and, for the reasons I have set out, it is a measure which is both necessary and proportionate. I therefore commend it to the Committee.

Motion agreed.