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Gareth Thomas: My hon. and learned Friend makes an important point about judicial independence, but does he accept that the way in which judges are appointed militates against that noble aspiration?
Ross Cranston: I do not understand my hon. Friend's exact point. There may be a point about judges' representativeness, but the way in which they are appointed in this country strengthens the notion of judicial independence because, unlike what happens in the United States, there is no suggestion that appointments are made on a political basis.
Vera Baird: Perhaps I am more bluntly spoken than my hon. Friend the Member for Clwyd, West (Gareth Thomas), but is not it fairly well known at the Bar that those who ingratiate get on? That does not encourage independence.
Ross Cranston: I cannot accept my hon. and learned Friend's point. Judicial appointments are made neutrally, and depend on merit. Perhaps my hon. and learned Friend can give specific examples to cure my naivety, if naivety it be.
Judicial independence requires mutual respect between institutions. The House must accept that some judicial review or sentencing decisions do not fit a specific political agenda. Sometimes the media approach me for comments on cases. They ask, "Do you want to comment on that sentence?" I am always reluctant to do that because I do not know the background, and I have not read the papers or heard the argument in court. We should be reluctant to condemn decisions immediately when we do not know the background.
By the same token, there must be judicial deference. I have presented that rather unorthodox view for several years, even when the Opposition were in government. I said that judicial review was going too far, that judges had to respect the legitimacy of Parliament and that there was the matter of institutional competence. Judges are not always institutionally competent because they do not have access to the same range of information as Parliament. All I am saying is that judicial independence is a crucial aspect of our constitutional arrangements, but it requires mutual respect from both Parliament and the judiciary.
The issue of access has been raised by the hon. Member for Somerton and Frome (Mr. Heath) and others. I got the impression that the hon. Gentleman was talking about physical access, in terms of the courts being in the appropriate geographical area and providing access in that way. My hon. Friend the Member for Stafford (Mr. Kidney) made the valid point
that there was a history of people being unable to travel long distances, but that in this day and age, although there was a case for having local courts, we had to take into account the fact that we could use video links, or provide good public transport so that people could get to the nearest large town.I accept the point about geographical access. I know that if there were any attempt to close down the Dudley magistrates court, I would be raising hell with the Minister. I think that we all, as local MPs, take a similar view. I would caution against taking that point too far, however. The Select Committee raised the issue of whether access to the court should be included in clause 1. Clause 82, as amended in the other place, already contains a provision that any power to make civil procedure rules is to be exercised with a view to securing that
- "the system of civil justice is accessible, fair and efficient".
Court fees have been mentioned. That is one aspect of access to justice. My hon. Friend the Member for Clwyd, West (Gareth Thomas) rightly pointed out that the notion of full costs recovery was introduced by the Conservatives when they were in government, and that we took it forward. We have modified it, and page 38 of the evidence in volume II of the Select Committee's report carries an explanation by the Lord Chancellor's Department of how court fees are set, in terms of trying to further the notion of promoting access to justice. It is pointed out, for example, that it is impossible to provide completely open access, that resource constraints
- "would militate against the removal of court fees for all",
The more general point that I want to make is that the notion of access to justice is an extremely difficult one. Resources are an important dimension, as I have just mentioned. Another, which was touched on in the explanation by the Lord Chancellor's Department, is that we cannot provide for everyone in the community the same access as, for example, large corporations have to the commercial court in London. We have to be realistic about this; it is just not possible. We must, however, accord access to justice, and try to meet legal needs. There has been a great deal of research into legal needs, and into how many people have legal needs that are not met. We also have to provide a system of justice that will afford an avenue for people to vindicate their rights. There is no doubt about that.
There are also collective benefits that result from any system of justice—the benefit of providing new law, for example. It is not just the individual who benefits from bringing a case and winning it; the case might lead to a beneficial change in the law. I commend my hon. Friend the Minister, because I have attended at least one seminar at which she has put forward the argument that providing access to justice can, in some cases, address issues of deprivation. I think that the argument is that—I am not putting this in her terms—sometimes problems come in clusters.
A person who is unfairly dismissed and loses their job, for example, might get into difficulty with their landlord, as well as being subject to strains in the family that might lead to family disputes. If we could address the first problem, the consequential problems might not arise. In such circumstances, we would be dealing with a situation in which providing access to justice not only provided benefit to the person winning or losing the case but had a wider social benefit. I congratulate the Law Society on its submission, because it raised the more general issue of the collective benefit that access to justice can provide.
There are difficulties, however. We cannot provide unlimited access to justice. In a sense, we rank claims. We say, for example, that criminal claims should have first bite of the legal aid budget, because they involve the liberty of the subject. We then try to rank other kinds of claims. We rank immigration claims quite highly, because in some cases they deal with the right of people to claim asylum. It is difficult, however, after ranking important claims such as those, to rank other claims. Should we, for example, rank the claim of a tenant over that of an employee, or that of a personal injury victim over one involving family matters?
I do not have time to address this point, and it goes well beyond the provisions of the Bill, but I believe that we have to be a lot more inventive about the way in which we provide access to justice institutionally. I have always been a great proponent of small claims courts, and there are further alternative dispute resolution methods that can provide suitable access to justice.
David Taylor: My hon. and learned Friend mentioned that he had always been a major proponent of small claims courts. I have sent debts owed to me to a small claims court when I was operating as a freelance accountant, and sometimes found it very difficult to enforce the judgment of the court. Does my hon. and learned Friend regret that—so far as I can see—there are no provisions in the Bill to extend the improved powers of fine enforcement from magistrates courts to the civil end of the spectrum? That is a real need that must be met.
Ross Cranston: There is a problem there, and my hon. Friend is not the only one to have obtained a successful judgment in a small claims court, only to have problems in enforcing it. We must address that issue. There is a consultation paper on enforcement; a report was also made to the Lord Chancellor's Department on the issue. Enforcement is absolutely vital. I am digressing much too far from the Bill, but I must say that I was always a proponent of a separate system of small claims courts—as is found in other countries—rather than putting such cases into the county courts. That would create a whole new culture in terms of their operation; that, however, is a subject for another day.
8.8 pm
Mr. Humfrey Malins (Woking): May I declare an interest as a solicitor, a recorder of the Crown court and a deputy district judge? I want to try, in the few minutes available to me, to be helpful to the Government and to
focus on the issue of fines, especially those matters covered in clauses 36 and 37 and schedule 3 of the Bill. The ladies and gentlemen who drafted those provisions are undoubtedly well intentioned, but equally certainly, they lack an understanding of the real world of the courts in which some of us sit, week after week, in the tougher parts of London. Increasingly, I find policies enshrined in Bills of 120 clauses—Bills that need have no more than 20 clauses—which have very little relevance to what is going on in the real world.The scandal of unpaid fines—it is a shocking scandal, particularly in the London area—needs to be drawn to the attention of a wider audience. We all know that the vast majority of criminal cases are decided in the magistrates courts. We also know that the vast majority of disposals in the magistrates courts take place by way of fines. Public confidence in the policies governing the imposing and collecting of fines is therefore vital; without it, the system would lose all credibility.
Thousands of defendants in the London magistrates courts—there are 20 or more tough magistrates courts within a 10 or 15-mile radius of the House—are putting two fingers up to the legal system and the judiciary by refusing to pay fines that are now becoming almost voluntary, and by and large they are getting away with it. In 2001–02, the fines imposed by magistrates courts in the Greater London area amounted to £77 million. One might expect most or all of that to have been recovered, and one might expect most of those who had defaulted on purpose to have received a short sharp custodial sentence. Far from it: nearly £42 million of the £77 million was, in effect, written off—remitted by the courts as being unrecoverable, or written off in itself. That amounts to nearly 60 per cent. of the fines imposed.
Why are the fines not collected? It is not hard to understand the reasons. Let us suppose that you and I, Madam Deputy Speaker, were brought before a court and fined. No doubt we would try to pay promptly—indeed, Madam Deputy Speaker, you might pay more promptly than I. But let us picture a court in which a defendant is appearing before a district judge for non-payment of fines. What will the district judge do?
There was a time when it was relatively straightforward to impose a custodial sentence on an absolute defaulter, but it is now becoming rather difficult. The court has to go through a series of questions before it can take a really harsh view. That is set in stone. It should be remembered that the defendant will have been fined a few weeks ago, and that the question of his or her means will have already been dealt with. He or she is before the court as a non-payer.
The court, strangled by regulation week after week, must take a number of laborious procedural steps before it can consider a custodial sentence for non-payment. Would an attachment of earnings order be right? Most people who appear in the London courts are out of work or else claim to be, so there is no point in that. What about a deduction of benefit? The most that can be deducted is £2 a week, and the process costs more than the result. What about sending in the bailiffs—a power trumpeted by the Minister earlier today, and referred to in the Bill? That policy has been around for years. It is utterly ineffective. Most defendants who are not going to pay have few items of value, or, if they have some, secrete them. Bailiffs give plenty of notice before calling,
and I venture to suggest that the recovery of fines through their visits amounts to very little. No doubt the Minister can give me the figures.What about an action in the county court? That is too expensive, because the magistrates court must pay the summons fee. What about a money payment supervision order? What is that, it may be asked? It merely passes the defendant to the probation service, which, apparently, tries to help the defendant to pay but provides no sanction when it comes to an unwilling payer. Then there is the absurdity of the attendance centre order, which can only be made against those under 21. The courts have got wise to the fact that such orders are not harsh. It is a clear understanding among the judiciary that they usually mean a young person popping down to the attendance centre to play a computer game for an hour or two, and that is the end of the story. The orders are not actually made. It is a procedural nightmare, and it is an ineffective system—often made the more galling for those sitting in judgment by the obvious ring of the mobile phone in the defendant's pocket while he is explaining why he cannot pay the fine.
What about custody? Strictly speaking, even today, if a defendant is found guilty of wilful neglect or culpable refusal to pay the fine, it is possible eventually to impose a custodial sentence; but believe me, it is necessary to go through all the processes I described earlier—laboriously, for hours—before it is possible to get anywhere near that.
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