The
Parliamentary Under-Secretary of State for Justice (Bridget
Prentice): It is a pleasure to serve under your
chairmanship, Mr. Martlew. I will try to answer all the
questions both hon. Gentlemen have put. I understand their concerns. No
one likes an increase in fees or to pay more for any service. It is
understandable that people were generally quite negative in response to
the consultation. Perhaps I can put the orders into context by
discussing what options are available for funding the civil
courts.
There
are probably just four things that could be done to fund the civil and
family courts system. One would be to maintain the concept of full cost
recovery, whereby those with sufficient means pay the full cost of
litigation. Full cost pricing is probably a more accurate term, given
the amount of remission that is allowed. Secondly, we could increase
the subsidy that is made available through the Ministry of Justice by
taking money from the legal aid budget and putting it towards reducing
court fees; however, I doubt that that would receive universal support.
Thirdly, we could simply slash court services, closing courts and
sacking staff over and above any other routine efficiency savings that
we might be making. Fourthly, we could increase taxes so that the fees
were met by the taxpayer. None of those four options is particularly
palatable, but the first one—to maintain full cost recovery when
people have sufficient means—is the most
palatable. The
changes in the orders are designed to reflect more of the cost of the
service provided in our civil courts. They cover proceedings between
private parties—for example, one company taking action against
another for breach of contract. At the same time, the fee remission
system is available to protect access to justice, which, as the
Opposition spokesmen rightly say, is an important part of our judicial
system. In that way, the less well-off are protected—for
example, those on a low income will be able to enforce child
maintenance payments, because they will be able to have the fee
remitted. I
understand why some people are uneasy about some of the increases, but,
as the hon. Member for North-West Norfolk said, we are in difficult
economic times. Without the fees, the Courts Service would require a
subsidy in the region of £600 million from the public purse,
which is not feasible in the current economic climate. There are about
6 million people in receipt of means-tested benefits or tax credits who
would be eligible for automatic remission from court fees. Anyone who
would suffer financial hardship if required to pay fees could apply for
remission based on their income and expenditure—their disposable
income—even if they were not on a specified means-tested
benefit, or if their income were not below a specific
amount. In
protecting access to justice, in 2008-09 the taxpayer, through the
Department’s system of fees remission, in effect paid subsidies
of more than £23 million for civil and family proceedings in
170,000 instances of remission. Setting fees generally at levels lower
than 100 per cent. cost recovery would mean increasing that taxpayer
contribution, which in turn would put pressure on other budgets, such
as legal
aid. Public
expenditure is obviously a matter of policy for the Government. What
the state provides free or at a charge is determined by the terms and
priorities of the allocation of the scarce public resources. We
recognise that citizens in a democracy under the rule of law have a
constitutional right to accessible court systems; however, it is not a
constitutional right to have free access. We simply need to ensure that
people who cannot afford to pay are
protected. A
number of the changes relate to applications to enforce judgments that
have already been made in debt claims between private parties and which
are recoverable from judgment debtors who can, but will not, pay their
debts. The hon. Member for North-West Norfolk made the important point
that creditors should be able to recover their debts. At the same time,
we have put in
place a number of systems that will protect those who are finding it
difficult to pay their debts—for example, the mortgage
pre-action protocol and other debt management plans that will help
people through this turbulent economic time. The
fee for sending a bailiff to collect a debt or to seize a
debtor’s goods rises to £100 from £35—the
hon. Member for North-West Norfolk mentioned the other fee of
£55. The creditor will pay that fee, but it is automatically
added to the debt. We believe that creditors should be discouraged from
taking enforcement action against vulnerable debtors who genuinely
cannot afford to pay. Charging the true cost of enforcement processes
will mean that creditors consider carefully whether to pursue the debt
in that way and will look at alternatives. Fees are automatically
waived for people on means-tested benefits, such as income support, or
on low incomes—for example, fees will be waived for a single
person earning £13,000 or less. People who do not meet either of
those criteria can still apply to the court for a full or partial fee
waiver based on an assessment of their disposable income, which will
take account of rent and other key household expenditure.
Before the
increases, there was a large general subsidy from the taxpayer for some
areas of court business from which all court users in those areas
benefited, regardless of their ability to pay. For example, in
magistrates courts, civil fees covered only 55 per cent. of the cost of
the work. Fees for enforcement processes in particular did not reflect
the full cost of the process, so they were, in effect, subsidised by
fees paid in cases in which enforcement was not required, which was
unfair to the creditors and debtors.
Of course we
are keen that those who can but will not pay their debts are pursued
effectively through the courts. We are also keen to help people with
debt problems to avoid court in the first place. The legal process
provides ample opportunity before and during court proceedings for
debtors to come to payment agreements with those to whom they owe
money. Equally, creditors should be discouraged from taking enforcement
measures against vulnerable debtors who genuinely cannot
afford to pay. Charging the true full cost of enforcement
processes—for example, warrants or charging orders—will
encourage creditors to think more carefully before choosing to resolve
cases through the courts. When they do so, it is right that they should
pay for the service. The key changes help those in financial
difficulties by discouraging inappropriate or premature enforcement
action against them.
The hon.
Member for Carshalton and Wallington asked what the point of
consultation was if the policy was not up for discussion. In fact, the
policy was up for discussion and we made changes as a result of the
consultation—for example, instead of the proposed single fee in
the magistrates courts, we introduced two stages: one at the point of
application and one if the case was contested. He also asked about the
single fee for warrants. I understand what he is getting at, but the
problem is that the process is the same, regardless of the amount that
the warrant might be issued
for. The
orders must also be seen in the context of the long-term strategy of
reviewing and reforming the court fees system. Our key objectives are
to ensure that the system meets the cost recovery targets set for
civil, family and probate business, protects access to justice through
a well targeted system of remissions and ensures
that the taxpayers’ contribution to the system’s cost
remains affordable. I welcome the debate because it is important to
look at such matters in
detail. The
hon. Member for North-West Norfolk asked whether the rates allowed in
remission applications have increased or decreased. They have increased
in line with those applied by other Government Departments. The hon.
Member for Carshalton and Wallington made an important point about the
overpayment of legal aid fees to solicitors last year. I assure him
that the Legal Services Commission is taking robust action in
recovering those
fees. I
understand that this is a difficult matter. We are well aware that we
need to ensure that an appropriate balance is struck between
financial sustainability and access to justice; however, it is right
that those who use the civil courts to resolve private disputes make
some contribution to the cost of the service, according to their
ability to pay.
Mr.
Edward Timpson (Crewe and Nantwich) (Con): The Minister
talks about proportionality of access to justice and the financial
ability to access justice. That is the backdrop to the orders. Under
the magistrates courts fees order, a flat fee is proposed for other
civil proceedings and committal proceedings, which assumes that debtors
will go through each stage of all processes within any one case,
whereas before there was a separate fee on each occasion. Does she
think that is proportionate, or is it disproportionate in cases where
not every stage of the processes is gone
through?
Bridget
Prentice: I think it is proportionate. We made those
changes as a result of the consultation in order to give people,
whether creditors or debtors, the opportunity at each stage to think
about whether they wanted to continue in the action that they were
taking. Often, debtors will feel that, having got to that stage, it
would be appropriate to pay. I am very conscious of the fact that, in
some cases, the creditor may well also be at the margins financially.
That is why remissions are so important. The principle still applies:
debts should be paid. We want to ensure that creditors are not put in
difficulty. Many creditors have larger pockets than others and can
sustain themselves during these processes, but we are conscious of
those who do not.
I hope that
my final remarks will give some comfort to the Opposition Members.
Although we think that the provisions strike a proper balance, I am
keeping the matter under review and I will assess their appropriateness
in the light of everyday experience. I am not saying that this is the
end of the matter. For the moment, however, I think we have struck the
right balance. I ask the hon. Member for Carshalton and Wallington not
to press his
objection. 5.2
pm John
Hemming (Birmingham, Yardley) (LD): I declare my interest
as chair of Justice for Families, a network of advisers who work mainly
in the family courts, but also in other courts, as McKenzie friends.
When one watches what goes on, one sees all sorts of problems with
access to justice. In essence, the orders are all about access to
justice. To that extent, we should not be too worried about how much
the local council has to pay to get
somebody sent to jail, because the local council has a lot of resources.
We should be concerned about individual access to justice.
The
Magna Carta of 1215 states in clause 40:
“To
no one will we sell, to no one deny or delay right or
justice.” That
is not in force now, but the Magna Carta of 1297 is—well, only
three clauses are. Clause 29
states: “We
will sell to no man, we will not deny or defer to any man either
Justice or Right.”
I presume
that that includes women, it being written a long, long time
ago. The
essence of my point is that we are now proposing to sell justice to
people and make a profit out of it, because the objective behind full
cost recovery is to charge so much in cases where there is no fee
remission that we make enough profit to pay for fee remission. I do not
have a particular problem with the council paying more money, but there
is a serious problem with regard to individuals facing the justice
system. We talk about public good. The rule of law is a public good, to
the extent that it affects those people who do not go to court because,
hopefully, they follow the rule of law, as well as those who do go to
court. If people feel that justice in this country is only available to
people on benefits and those with lots of money, we are cutting out a
lot of people from the rule of law. Whether it is lawful for a
statutory instrument to change clause 29 of the 1297 Magna Carta is a
question that someone else should look at.
The
Chairman: Order. I am not qualified to do
that.
John
Hemming: The courts could look at that at a later stage,
when people try to charge the fees. I checked the statute law
database and the clause was in force a few minutes ago. It
has not been repealed as yet. I presume that the doctrine of implied
repeal does not apply to secondary legislation, whereas it does apply
to primary legislation. However, underlying all that is the principle
for which my hon. Friend the Member for Carshalton and Wallington
argued: the matter is not one to be dealt with quickly in a statutory
instrument Committee. The fundamental point is that it is wrong to do
so, regardless of whether it is lawful or not. The issues are complex.
There are circumstances, such as charging the council more to get
somebody locked up, to which I do not object, because that is one arm
of the state against another. However, I am worried that we are
gradually squeezing people out of justice in this country, to the
extent that it is only available to the wealthy and those with very
little
resources. 5.5
pm
Tom
Brake: I seek guidance from you, Mr. Martlew,
on where we go from here. I have stated that we object
to the order, and I assume that I am now summing up, and responding to
the Minister’s
comments.
The
Chairman: Obviously, if the Minister feels the need to
respond, she can. Members can speak as many times as they
wish.
Tom
Brake: The Minister has stated that the statutory
instrument will ensure that those who cannot afford to pay are
protected; the Government are well aware of the need to do that.
However, she has not reassured me that that is what will happen. I
welcome the fact that she is trying to secure savings in other areas,
in relation to the £25 million overpaid to legal aid lawyers. I
also congratulate my hon. Friend the Member for Birmingham, Yardley, on
citing the Magna Carta and on giving his experience of family courts,
which are an area of concern. There are particular concerns about the
way in which their fees are to increase and about the impact that that
could have on vulnerable children. In conclusion, I have listened
carefully to what the Minister said, and I understand that she will
keep the matter under review. However, we remain concerned that the
statutory instrument will in fact reduce access to justice. I would
therefore like to vote against
it. Question
put. The
Committee divided: Ayes 7, Noes
4.
Division
No.
1] Question
accordingly agreed to.
Resolved, That
the Committee has considered the Family Proceedings Fees (Amendment)
Order 2009 (S.I. 2009, No.
1499). civil
proceedings fees (amendment) order
2009Resolved, That
the Committee has considered the Civil Proceedings Fees (Amendment)
Order 2009 (S.I. 2009 No. 1498).—(Tom
Brake.) magistrates’
courts fees (amendment) order
2009Resolved, That
the Committee has considered the Magistrates’ Courts Fees
(Amendment) Order 2009 (S.I. 2009, No. 1496).—(Tom
Brake.) 5.9
pm Committee
rose.
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