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Lord Goodhart: I am grateful to the Minister for giving way. Does she agree that making receipt of benefits a passport to the waiver of fees is one of the problems we face in this country? Those who are just above the benefit limits are faced with the full burden of the fees, although they too are not, in practice, able to afford them.
Baroness Scotland of Asthal: It will very much depend on the nature of the litigation in which those individuals are involved. In some fields, legal aid will be available; in others, there is a small claims court where the fees are limited and small. In respect of others, there is arbitration; we have made legal aid available, for instance, for mediation. The levels in relation to legal help have risen. So we have tried to look at the issue in the round to ensure that the money we expend on provision for legal aid is targeted on the social exclusion of those who are most in need and that those in the bracket just above have a better opportunity to obtain legal help.
Members of the Committee will also know that the Government are investing a great deal of time and effort in encouraging alternative dispute resolution. We recognise from the research that court-based solutions are often the least successful in that they provide not the highest level of satisfaction because in our adversarial system one party must win. The corollary is that the other party must lose. There will always be 50 per cent who, for one reason or another, are likely not to be satisfied with the result.
All of that must be seen in the round. It is clear that we need significant sums to be made available to enable the courts to be modernised in a way that is proper. But full cost recovery has been with us for a
Baroness Scotland of Asthal: We could probably enter into a long historical debate as to when there was full-cost recovery. When judges pocketed the money themselves and were paid directly, one would say that that was full-cost recovery, because if they did not get the money, they did not eat
Baroness Scotland of Asthal: And I dare say that some would like those days to roll again, but they have not. We could go back in history, but what do we know? We know that full-cost recovery is appropriate particularly in relation to the example given by the noble Lord, Lord Carlisle, and others in relation to the commercial courts. The noble and learned Lord, Lord Donaldson, rightly said that, because our courts are used so much by international commercial litigants, we provide an exemplary servicesome would say the best in the worldin relation to dispute resolution heard judicially in our courts. Therefore, we must use those opportunities to try to maximise the income brought into the system so that we can have state of the art courts.
Of course I understand the anxieties that have been expressed about full cost recovery and how from time to time it may impact negatively on various sections, but I say only that if one looks at what the noble and learned Lord the Lord Chancellor has done in relation to fees, it will be clear that he has been assiduous in trying to ensure that the disadvantaged are cushioned in relation to fees and that there is a discretion in terms of how they operate.
Baroness Scotland of Asthal: The noble and learned Lord will set fees from time to time based on the circumstances that then prevail. It would be wonderful if I could give noble Lords a hard and fast rule, but I daresay what would happen then would be that a noble Lord would ask, "What if X changes, and X plus Y equals Z and not C?".
Lord Hunt of Wirral: I am grateful to the Minister. I believe that the noble Lord, Lord Thomas of Gresford, along with many other noble Lords who have participated in the debate, has put a fundamental question. As noble Lords understand the position, the Government have recently announced, and Her Majesty's Treasury has made clear, that the policy in levying fees will now be for full cost recovery in all actions. We can forget for a moment the commercial court. Is that or is it not still the Government's policy?
Baroness Scotland of Asthal: It is full cost recovery, but as I have tried to tell noble Lords, the noble and learned Lord the Lord Chancellor has taken into account the categories of persons against whom court fees should not be recovered in full. Furthermore, I have sought to go through the various categories which have been included. Those categories will be extended from time to time. As benefits and other levels change, I daresay that that will be reflected in the levels of fees and remissions of fees that will be granted.
However, if the noble Lord was to ask whether there will be full cost recovery in each case, then of course that cannot be right. That is because litigants who are financially disadvantaged or who belong to a group that is particularly vulnerable will be cushioned in order to enable them to bring their cases in accordance with what is proper.
Baroness Scotland of Asthal: Fees will be levied so as to enable full cost recovery to be rendered wherever possible. I cannot give the noble Lord a definitive answer to the question of what proportion, if any, of cushioning may have to be provided from time to time by the Lord Chancellor from the budget.
Lord Hunt of Wirral: I commend the noble Baroness for being absolutely clear with the Committee; namely, that full cost recovery is now the policy of the Government. It is the policy that the Civil Justice Council has said should be abandoned. The council
Baroness Scotland of Asthal: I am not able to name other jurisdictions, but I shall certainly write to the noble Lord. I have tried to make it clear that I do not accept the premise. I have also sought to make it clear that the specific groups to be cushioned will remain cushioned. No doubt noble Lords will say that currently we do not have a policy in relation to full cost recovery because we have made exceptions for those groups of people whom we have identified as being vulnerable and thus in need of assistance and cushioning.
Lord Hunt of Wirral: I am grateful to the Committee for obtaining from the Minister clarification of the Government's policy. Although the noble Baroness may seek comfort by putting the matter into a historical context, noble Lords are now aware that there is to be a new policy of full cost recovery. That is why there has been such an outcry from senior members of the judiciary; that is why we heard from the Lord Chief Justice on Second Reading; why we heard from the Master of the Rolls on "Newsnight"; and why we have heard from the Civil Justice Council. We are not talking about the commercial courtwe could engage in a debate about fees in the commercial courtbut about civil court fees generally.
The Minister will have thought long and hard about these matters and the noble and learned Lord, Lord Donaldson, paid tribute to her for that. If I ever wanted a plea in mitigation I could have gone to no one better than the noble and learned Lord. He gave a strong plea in mitigation on behalf of the Minister, who has to try to sell this policy.
Baroness Scotland of Asthal: The noble Lord keeps repeating that I said "full cost recovery". However, I have made it plain that the LCD does not recover full costs for civil fees. There are exemptions and omission arrangements for those who are not legally aided and who would suffer hardship in paying fees. The subsidies for family proceedings in, for example, adoption and domestic violence cases, together with these provisions, act to protect access to justice. So, although the noble Lord says "full cost recovery in relation to all", this is not a new policy. Nor is it correct to say that we recover full costs of civil fees. We do not do so because of those exceptions.
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