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Lord Falconer of Thoroton moved Amendment No. 140C:

The noble and learned Lord said: My Lords, the amendment deals with the issue of fees. The government amendment to Clause 44 simply provides that the Minister may by order, with the agreement of the Treasury, prescribe fees payable in respect of anything dealt with by the Supreme Court. The current provision meant that the Minister did not need the consent of the Treasury to make such an order.

I have tabled the amendment as it is deemed desirable to bring the making of the Supreme Court fee orders into line with the making of court fee orders for other courts whereby Treasury consent is necessary; for example, Section 92 of the Courts Act 2003 and various other Acts, including Section 116 of the Judicature (Northern Ireland) Act 1978 and Section 2
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of the Courts of Law Fees (Scotland) Act 1895. This is therefore a standard provision for courts fees throughout the United Kingdom. I beg to move.

On Question, amendment agreed to.

Lord Kingsland moved Amendment No. 141:

"and must ensure that the levels of fees are such that the average cost of bringing appeals to the Supreme Court do not in total exceed, in real terms, the cost of bringing such appeals to the House of Lords in February 2004"

The noble Lord said: My Lords, this issue has been pursued on previous occasions in the Select Committee and in your Lordships' House. I shall not speak at length to it. Indeed, my task has been made considerably easier by the intervention of the noble and learned Lord, Lord Ackner, earlier in the debate, on the amendment moved at the beginning of today's proceedings by the noble and learned Lord, Lord Lloyd of Berwick.

I simply wish to draw your Lordships' attention again to the evidence given at the Select Committee by the Bar Council and the Law Society, particularly the observations made by Mr Richard Drabble QC, which are to be found in Volume 2—the evidence volume—of the Select Committee report on the Constitutional Reform Bill.

Mr Drabble gives evidence on behalf of the Bar Council as follows:

The noble and learned Lord should take the evidence of Mr Drabble extremely seriously. It has been reinforced today by the intervention of the noble and learned Lord, Lord Ackner. It is supported entirely from these Benches. I beg to move.

Lord Goodhart: My Lords, I support what has been said about the principle of the matter by the noble Lord, Lord Kingsland. I agree that there are serious issues about fees. There is undoubtedly a threat that increasing fees can lead to the denial of access to justice to a number of people who cannot afford to litigate if they are compelled to pay excessive fees.

I differ from the noble Lord, Lord Kingsland, in that I think that his formula is somewhat too rigid. His amendment states that the Minister,

I suspect that the average costs of court fees at all levels are going to rise faster than the rate of inflation because they tend to be fairly labour-intensive. "Real terms" is not a wholly adequate test, and the proposal is rigid and inflexible.
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We have attacked this in a somewhat different way. Amendment No. 175—I originally suggested that it should be taken with this group of amendments; that was not done, but I think it is appropriate to speak briefly to it—provides that the setting of fees under Clause 44 should require some further parliamentary input. The fees proposed should require the affirmative resolution in both Houses.

There are precedents for that. A substantial issue arose over the fixing of fees in a Bill in recent years which ended with the Government accepting that there should be a parliamentary process for approving them. The appropriate method of keeping the balance right and ensuring that fees are not put up excessively is to require parliamentary input as set out in our amendment.

Lord Ackner: My Lords, I support the amendment for the reasons that I gave earlier in the debate. I should also like to point out that the stimulus of access to justice is prejudiced by this sort of situation, one in which fees rise way beyond their previous levels purely because the costs involved are looked upon as something to which the Government have no obligation to contribute; rather, only an obligation to indemnify themselves against those costs. Accordingly, I support the proposal.

Viscount Bledisloe: My Lords, the need for the amendment is amply demonstrated by the figures for costs supplied earlier today by the noble and learned Lord. They demonstrate that the estimated annual costs of the Supreme Court will be 250 per cent of the present costs—in fact, somewhat over that. I doubt very much whether, at the moment, the fees of the Supreme Court even cover the £3.2 million quoted in the Statement as the current running costs of the Appellate Committee. Many of those costs are absorbed by the House of Lords and not allocated to the committee itself. Any attempt to achieve full fee recovery would mean that fees would have to rise to more than three times their present level.

I accept that the Government do not intend to load all that on to the Supreme Court fees, but to recover the rest by spreading them over litigation generally. But even if they get back only a small proportion by raising the Supreme Court fees, fees will still rise enormously. That is wholly wrong. Personally, I agree with my noble and learned friend Lord Ackner that the concept of full fee recovery from taxpayers who are paying taxes to provide courts is wrong in any case, but that is a wider topic for another day.

In the Supreme Court, an individual litigant will be seeking to clear up a point of law of general importance for the benefit of the administration of justice. Frequently—this is a point very much ignored by the Government—he will need to do that merely because governments have drafted their Bills lousily. That may not be the case for the Government in power at the moment; it may have been the previous administration. But an enormous quantity of litigation in the House of Lords arises because Bills are not drafted clearly enough.
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Why the individual litigant should pay enormous extra sums to clear up the mistakes of governments is something which neither I nor, I venture, anyone else could understand or justify, so I strongly support the amendment. The noble Lord, Lord Goodhart, may be marginally correct to point out that tying the fees to "real terms" would mean that they would not rise quite as fast as other fees, but that is a minor point which might make a difference of around 1 per cent. Therefore I support the amendment tabled by the noble Lord, Lord Kingsland, which I hope he will press.

Lord Lester of Herne Hill: My Lords, I am broadly sympathetic to the aim of the amendment but not to the means that have been employed. Perhaps I may raise a matter which, when the noble and learned Lord the Lord Chancellor deals with it, may help in his response to the debate.

Clause 44(3) provides:

The word "denied" is strong and absolute. However, the point that I wish to make is that surely the provision will have to be read and given effect compatibly with Article 6 of the European Convention on Human Rights. That article guarantees the right of access to courts and case law shows that there must not be any disproportionate hindrance. It goes beyond denial and refers to hindrance, whether that arises in the setting of fees or in the form of any other barrier.

I am worried about the word "denied" being read on its own. However, I hope that the noble and learned Lord the Lord Chancellor will be able to reassure the House that when this provision refers to "denied", it must be read subject to the right of access to courts with no disproportionate interference to that right of access. That would limit the Minister's powers because he would have to act compatibly with Section 3 of the Human Rights Act 1998 and the Article 6 right. That would go a long way towards reassuring me because it would be an overriding safeguard.

I should like to raise one other point in the light of what was said by the noble Viscount, Lord Bledisloe. Of course, it is not only fees that can create a barrier, but also any liability for the costs of the other side. One of the major barriers to going to the Supreme Court will be if the litigant in, let us say, a public interest case involving a constitutional matter, is faced with the liability to pay the Government's legal costs if he fails. I think that that could be dealt with by something like a protected costs order fashioned by the Supreme Court, which would mean that the House would not have to deal with it. But again, Article 6 of the ECHR, when read with Section 3 of the Human Rights Act, will provide a safeguard. I should like the Minister's reassurance that I am right about that.

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