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The Duke of Montrose: My Lords, we seem to be discussing fees in great detail. They are a matter of interest to the whole legal profession and not simply to
 
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senior judges. The noble Viscount, Lord Bledisloe, referred to the much higher fees that may have to be charged as we begin to look at the costs now being proposed compared with those set out in the explanatory memorandum from the Law Society of Scotland to the Bill. It stated that the costs were likely to be between 0.8 and 0.1 per cent per civil case in each jurisdiction, but we are now talking about figures that presumably will be much larger than that. At that point we were told that,

"the total sum recovered by way of fees payable to the judicial office was just under £500,000, which certainly leaves quite a shortfall".

At the Committee stage we considered the implications for Scottish litigants. It turned out that this would all be filtered through the Scottish Parliament and might amount to 80 per cent of the cost of cases emanating in Scotland. The noble and learned Lord the Lord Chancellor was reluctant to be pinned down on this subject in Committee. Can he say whether the Government envisaged in their discussions with the Scottish Executive that they will have power to recoup some proportion of the costs of litigation emanating in Scotland, and whether this will be by fees payable through the Scottish courts if they decide to do so?

Lord Brennan: My Lords, I raised some practical questions about fees at the Second Reading of the Bill. At the moment, a legally-aided petitioner to the House of Lords is unlikely to have to pay a fee. I assume that there are special arrangements for conditional fee agreements. When I last looked at this issue three or four years ago the fee for a private litigant to pursue a petition was quite substantial; it cost many thousands of pounds.

My question seeks information. I have looked at the list of appeals currently pending before the House, and more than half of them are judicial review claims involving asylum and government action. Will the fee structure make provision for the fact that with such a number of government departments involved they should have some obligation, win or lose, to make a contribution themselves—especially if the successful litigant achieves a point of public importance and of consequential economic benefit? That is my first point.

Secondly, in the distribution of moneys which are collected in this way, will any attempt be made to be selective? In the same list, there were about six tax appeals—almost entirely brought by extremely wealthy people or companies—which, in terms of the Law Lords' time and effort, will probably be expensive to hear. It would be extremely unrealistic, if not unjust, that such a litigant, expecting to recoup perhaps many millions of pounds, should pay the same fee as a litigant with a private matter which affects only him or her.

So my two questions are, first, what happens to government departments which are involved with the Law Lords; and, secondly, is some kind of selectivity
 
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envisaged so that the most expensive appeals—certainly in regard to recovery of tax and so on—should have a selected band?

Lord Falconer of Thoroton: My Lords, the amendment of the noble Lord, Lord Kingsland, would have the effect of freezing fees in the House of Lords—and, when it is transposed, in the Supreme Court—at exactly their current levels, subject to inflation. So the assumption is that they are at a perfect level at the moment and that they should remain so for the next 30, 40 or 50 years. This is despite the point made by the noble Lord, Lord Brennan, that some litigants in the House of Lords, and subsequently the Supreme Court, may get considerable benefit from the litigation in which they are involved.

There was a period during the past 20 or 30 years when commercial litigation was most prominent in the House of Lords. It would not be right rigidly to say that fees must stay at their current level. The amendment proposed is inapposite.

Viscount Bledisloe: My Lords, surely that point is wrong. The amendment refers to the "average cost" of bringing appeals. It would therefore be open to double the cost of bringing tax appeals and to halve the cost of bringing matrimonial appeals. It allows you to discriminate against, or in favour of, a particular case. The amendment refers to the overall level of fees, not to each category of fee.

Lord Falconer of Thoroton: My Lords, that question should be put to the noble Lord, Lord Kingsland, rather than to myself.

But let us assume that that analysis of the amendment of the noble Lord, Lord Kingsland, is correct. Even so, it still falls foul of the objection that the amount currently taken in fees is exactly right. I do not accept that it is right. As the noble Lord, Lord Goodhart, said, the amendment would bring an inappropriate degree of rigidity.

The Government have always said that for civil work in the Supreme Court—not for devolution cases and not for criminal cases—we are committed to two principles: access to justice and full cost recovery. The latter principle was recently accepted by Parliament during the debate on the Courts Act on 12 November 2003.

Being mindful of the need to provide access to justice, I confirm the point made by the noble Lord, Lord Lester, that Clause 44(3) of the Bill would be read subject to Article 6. So he need have no fear about the use of the word "denied" because the principles that he outlined would apply.

Being mindful of the need to provide access to justice, rather than raise fee levels directly in the Supreme Court, the Government intend that the cost of civil work should be shared between the generality of all civil litigants appearing before the courts below the Supreme Court. In effect, this would mean placing a very small premium on all civil fees. But, again, we should not be restricted forever to the current level of
 
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fees in the Supreme Court. In the light of that explanation, the fears raised by noble Lords in relation to Supreme Court fees are misplaced.

A point was raised about whether there should be a process whereby there needs to be an affirmative resolution of both Houses before the fees are raised. This issue is covered in a later group of amendments but it will be useful to deal with it now. Noble Lords will note that considerable consultation is required before any fees are raised; they will note that it will be subject to Clause 44(3), a point raised by the noble Lord, Lord Lester; and they will note also that where for an individual litigant the fees are prohibitive, they will be waived or legal aid will contribute or pay the whole of them.

It would be wrong in principle—it would be unprecedented—for a fees order to be made subject to an affirmative resolution of the House of Lords. In those circumstances, both the amendment of the noble Lord, Lord Kingsland, and the proposal of the noble Lord, Lord Goodhart, that there should be an affirmative resolution of both Houses, are wrong. We provide sufficient protection.

The noble Lord, Lord Brennan, is right—a significant number of cases involve government departments, whether as appellants or respondents. There are no special provisions in relation to government departments funding particularly the House of Lords. I suspect that government departments are the most common litigants in many courts. Government departments have to pay their fees like anyone else. They make a greater contribution through paying more fees.

Unfortunately I have forgotten the noble Lord's second question.

Lord Brennan: My Lords, I asked about tax appeals and appeals which have large financial benefits.

Lord Falconer of Thoroton: My Lords, I leave open the possibility of looking again at the civil fees structure to see whether there is something in the noble Lord's point.

The noble Duke, the Duke of Montrose, asked about Scotland. The Scottish civil appeals contribution—which will be fairly small—to the Supreme Court will be made through a payment from the Scottish Executive, not by a premium being charged on Scottish civil litigants.

In the light of those remarks, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Kingsland: My Lords, I am very tempted not to do so because I believe my amendment is entirely appropriate for the various situations outlined by other noble Lords who have intervened in the debate. However, I will only win a vote if the party to my right—I hope its members do not object to being described as such—are with me.

I do not know whether or not they are with me—that will depend upon inter-party conversations which I have not yet had the opportunity to conduct—and I
 
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shall therefore beg leave to withdraw the amendment. However, I put the noble and learned Lord the Lord Chancellor on notice that I may return to this matter at Third Reading with either the same amendment or an appropriately composite amendment flowing from the negotiations which will take place. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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