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With regard to the amendment, it goes without saying that the board should have a power to adapt and develop raw data in order to be able to produce meaningful statistics. However, as I read the drafting, the power here is not confined to statistical purposes. In other words, it could be interpreted that it permits “adaptation and development”—for example, for onward transfer of raw data to government departments or public authorities other than that from which they were originally obtained. I do not believe that the Statistics Board should be embroiled in that sort of merry-go-round. I beg to move.

Lord Evans of Temple Guiting: I hope that I shall be able to reassure the noble Earl on his genuine concern. The amendment relates to the board’s function in Clause 20 of providing statistical services to any person in any place within or outside the United Kingdom. It might be helpful if I first say just a little about what we envisage by statistical services provided under Clause 20. This power is intended to allow the board to provide the range of services which the ONS provides currently.

The ONS undertakes services which include providing information and advice on the production of statistics, including to Governments in other countries developing their statistical infrastructure. For example, the ONS supports statistical capacity building in Ukraine, and undertakes a range of surveys, such as the English

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House Condition Survey that the ONS carries out for the Department for Communities and Local Government or the “omnibus” survey, which allows government departments or agencies that conduct work with a direct policy purpose to commission a few questions in a survey, providing a fast, cost-effective and reliable way for organisations conducting work in the public interest to obtain information. I think that the noble Lord accepts that there is necessary adaptation in some of the statistics which are provided.

Amendment No. 105, a probing amendment, seeks to prohibit the board from “adapting and developing” data under this function. However, in the course of carrying out statistical services, the board may be required to adapt or develop, and not just collect, data. Adapting of data is a significant part of any useful data-processing service the board is likely to provide and as such this should be retained.

At present, for example, the DTI undertakes surveys on construction, selecting businesses from its register of construction businesses as the sample frame. The DTI passes this list of businesses to ONS, where ONS adapts these data using information in its own business registers. For example, the ONS would add records of new construction businesses discovered through its own surveys of business or would inform the DTI that a business on the DTI’s register is no longer trading in construction. The adapted data are returned to the DTI, thereby keeping its construction register in step with the main ONS business register. A service level agreement governs this service and a fee is charged.

Given that such work is currently undertaken by the ONS, we think it appropriate that the clause makes it explicit that one example of statistical services that may be provided by the board is in adapting and developing data. This will not allow the board to become simply a conduit of information across government through Clause 44 as it is clear from Clause 44(9) that the regulation may be made only where disclosure is required by the board to carry out its function; and, furthermore, when disclosure is in the public interest. I hope that the noble Earl is satisfied with the explanation I have given.

The Earl of Northesk: I am most grateful to the Minister for that reply. I shall read most carefully in Hansard what he has said. For the moment, I am content to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Evans of Temple Guiting: I beg to move that the House be resumed. In moving the Motion, perhaps I may suggest that the Committee stage begin again not before 8.28 pm.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

Courts: Costs

7.29 pm

Lord Lester of Herne Hill rose to ask Her Majesty’s Government why civil justice costs must be recovered in their entirety from those who become suitors before the court.

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The noble Lord said: My Lords, this Question was first tabled by the learned Lord Ackner, who was a brave and consistent champion of the cause of justice in this House. When he died a year ago, I tabled it in my own name to draw attention to the Government’s regressive policy on civil justice costs. Alas, I cannot match Lord Ackner's sarcastic wit or his legal authority. He might have recalled the Irish judge, Sir James Matthew, who said:

The debate is timely. The Government’s botched plan to create a Ministry of Justice has given rise to well founded concerns on these Benches and within the senior judiciary about its financial, constitutional and management implications. As Lord Justice Thomas told the Constitution Committee yesterday, more safeguards are needed to ensure that the courts are properly funded and administered.

The current DCA consultation on civil court fees provides a sharp focus for this debate. The Civil Justice Council has repeatedly criticised the Government’s policy in this area. It has pointed out that:

In response to the last consultation in 2004, the council explained that the policy of full costs recovery is,

The right of access to justice is a fundamental constitutional right. Section 92 of the Courts Act 2003 empowers the Lord Chancellor to prescribe civil court fees, with the consent of the Treasury. In doing so, it requires the Lord Chancellor to,

But that is too limited a safeguard and must be read and given effect in accordance with the broader common law and convention right of access to justice.

What is objectionable is not the principle of levying reasonable court fees. The objection is to a levy that is disproportionate and which impairs the effective enjoyment of the right of access to civil justice. The DCA’s consultation paper was made in the Treasury and written by government accountants, using the language of the marketplace. In today’s Whitehall, the citizen becomes a “customer”, as though the litigant or “stakeholder” was merely seeking to buy butter or go to the cinema. The Civil Justice Council is rightly concerned at the short time allowed for the current consultation and that the consultation is too limited.

As in 2004, the consultation paper takes it as axiomatic—which I think means beyond dispute or argument—first, that the civil courts will continue to charge fees for the entire cost of running the civil and family courts, because a free service would require the newborn justice ministry’s expenditure to be increased by some £400 million; and, secondly, that general government fees and charging policy will continue to apply. It explains that this means that,

It is characteristic of the Treasury’s market-driven mind-set that it regards fee remissions and exemptions as a social subsidy, given by way of concession. It is a subsidy only in the sense that the taxpayer rather than the court user pays. The paper explains that the calculation of full cost on which fees are based,

Court fees are worth about £550 million and cover nearly 88 per cent of the full cost of running the civil and family courts. Currently, family court fees and magistrates’ courts civil fees do not meet the full cost of fee exemptions and remissions. The DCA therefore proposes to increase fees accordingly. It explains that otherwise, to comply with the Treasury fees and charges guide, it would have to reduce spending, for example,

That is a measure of the priorities of the Treasury in forcing the DCA to choose between closing courts and requiring suitors to pay for the full cost of running them, of paying judicial pensions, accommodating judges in heritage buildings and Victorian lodgings, court modernisation, and the burgeoning costs of investment in new technology.

It is as inappropriate to charge the user for the entirety of these costs as it is to charge the patient for the costs of running the NHS. The core services of the state, whether policing, healthcare, the prison and immigration service, or the Courts Service should be mainly funded from general taxation. In the words of the Civil Justice Council, the policy,

We are told in the DCA paper that,

I hope that the Minister will explain to whose efficiency this refers and how a policy of charging users rather than taxpayers will create a strong onus on the part of the DCA and related public authorities to maximise efficiency. I should have thought the reverse to be the case. Why is it is fair and equitable for a claimant of moderate means to be required to pay court fees so as to “subsidise” the cost of judicial pensions and salaries, and maintain the judges’ lodgings and heritage buildings?

I have given notice to the DCA of four key questions that will, I hope, be answered in the Minister’s reply. First, as a matter of principle, is it in the interests of justice to charge those seeking access to the courts the entire cost of running the courts, or, except for commercial and similar cases, should most of those costs be borne by general taxation in funding the Courts Service? Secondly, what has been the practical impact of the charging policy and its effect in impairing the effective enjoyment of the right of access to courts, especially taking into account the chilling effect of the costs

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rules, the impact of changes in civil legal aid and the decline in litigation? Thirdly, is the charging policy indirectly discriminatory in its adverse impact on vulnerable groups? Fourthly, would the Government’s proposals to modify the charging scheme be sufficient to avoid arbitrary, discriminatory and unnecessary financial barriers impeding or deterring effective access to justice in civil cases?

Significant levels of court fees risk deterring the citizen from using the civil justice system. Socially excluded groups are particularly vulnerable. The consultation paper fails to explain how it is objectively justifiable to maintain a policy that has a disproportionate adverse impact on vulnerable groups. Three years ago the Civil Justice Council called for a fundamental review of the exemption and remission provisions. That recommendation has not been accepted. Regrettably, it may once again be left to the courts to conduct a judicial review to secure an adequate guarantee of access to justice.

I said that the debate was timely, but of course it is untimely, coming on the eve of the local government elections, which I fear explains why the Chamber is not crowded. Finally, I should say that I wrote to the Lord Chancellor urging him to reply to this debate since it concerns the DCA’s consultation on a matter of constitutional importance, particularly affecting England and Wales. I have great respect for the Scottish legal system and for its law officers, including the Scottish Advocate-General. But I have to say that I find it a great curiosity that it should be left to the Scottish Advocate-General to have responsibility for replying to this debate.

7.40 pm

Lord Kingsland: My Lords, I, too, lament the absence of Lord Ackner from this debate. I am quite sure he would have had some excoriating observations to make about the Government’s policy.

Like the noble Lord, Lord Lester of Herne Hill, I, too, am curious as to what prompted the Government to invite the Advocate-General to respond to this debate, bearing in mind the responsibilities that I understand he has. By saying that, I do not wish in any way to say that I am not delighted to see him on those Benches.

As usual, the noble Lord, Lord Lester, has made a number of apposite observations and posed some demanding questions to the Government. I am simply going to continue in his slipstream. First, I want to ask the Government about the £34 million surplus that was a consequence of the recovery of charges levied on users of the civil courts by the Courts Service in the year ending 31 March 2006. This was the subject of a Written Question by the noble Lord, Lord Lester, which received a Written Answer on Tuesday, 9 January 2007. I hope your Lordships will forgive me if I read out the Answer from the noble Baroness, Lady Ashton of Upholland. It is plain from her Answer that she accepts that it is undesirable that the system should generate a surplus.

Quite frankly, I have some difficulty in understanding exactly what the noble Baroness means. Will the Minister be kind enough to interpret this Answer in a way that makes it clear what measures will contribute to the phasing out of the surplus, and what relative contributions each one will make to the total?

My second question concerns the Government’s policy to recover in total, as I understand it, the cost of providing court services. What do they think it appropriate to include in defining “cost”? We have already heard the noble Lord, Lord Lester, make some important observations about capital costs. To what extent do the Government think it appropriate to charge capital costs on the sort of capital expenditure to which the noble Lord referred?

My third question concerns the important contribution the Civil Justice Council is making to this debate. What weight do the Government give to principles that compete with the principle of recovering the total cost of the provision of court services? Recently the Civil Justice Council made the following observation:

My final question is to endorse and amplify the point the noble Lord, Lord Lester, made about access to justice. This ought to be a crucial component of the Government’s approach to this issue. Have the Government undertaken an analysis of the impact of their approach on access to justice? Furthermore, has a view been taken about the combined impact of the approach together with recent changes in legal aid rules? I emphasise a further point made by the noble Lord, Lord Lester, because I regard it as very important: what impact has the Government’s policy had on socially excluded groups? I underline what a debt the House owes to the noble Lord, Lord Lester of Herne Hill, for bringing this matter to its attention. We are all fortunate that he keeps his eye on a whole range of issues connected with access to justice, of which this is just one.

7.48 pm

The Advocate-General for Scotland (Lord Davidson of Glen Clova): My Lords, I am grateful to the noble Lord, Lord Lester of Herne Hill, for raising this

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debate, although I think I detect that he disagrees with the policy of full-cost recovery. This is an issue with a long history, as he knows better than many. True it is that, were Lord Ackner present today, I would no doubt be on the receiving end of two fairly acerbic observations. To some extent I am relieved I am not, but I regret that he is not with us because he was a very considerable legal figure.

The primary benefit of civil litigation is usually that the parties involved are those who receive the benefit, and that is perhaps the critical area of distinction between the approaches to the principle here. The Government believe it is right that those who take the primary benefit bear the costs of using the civil courts. The general policy of recovering most of the cost through fees enables better targeting of scarce public resources.

There are essentially three options for funding the civil court system. The first is to maintain the concept of setting fees to reflect cost, so those who have sufficient means to pay the full costs of litigation do so while the taxpayer’s contribution is focused on those qualifying for remission or exemption. The second is to subsidise the level of court fees generally by increasing taxes or taking money from, say, the legal aid budget in order to reduce court fees. It should be borne in mind that a wholly free court service would cost some £550 million. That figure has already been alluded to. Inevitably, the third option is to cut costs and therefore fees by slashing court services, closing courts and sacking staff, which, of course, no one would want.

Court fees have to comply with the general policy principles that apply to all services where the Government charge fees authorised by Parliament. The most important is that fees should not exceed the total cost of providing the service. Fees cannot be set to make a profit. All fee-charging services must have a financial objective agreed with the Treasury. For civil court fees, the objective is to recover the total cost, not counting the cost of providing fee exemptions and remissions. In other words, although the term is often used, the target is not full-cost recovery. A better way of describing the policy is full-cost pricing. This means that fees should generally be set at levels which, on average, if charged in every case rather than waived, would recover the full cost of providing the service.

Full-cost pricing, together with a system of concessions to protect the least well-off, is the better way of targeting the taxpayer’s contribution at where it is most needed. Furthermore, many fees in family proceedings are currently set at levels well below full cost. These include, in particular, the fees for domestic violence, adoption and public law childcare cases. So the taxpayer makes, and will continue to make, a significant contribution to the cost of running the civil and family courts. In 2005-06, court fees represented 79 per cent of the total cost.

The part of cost not covered by fees is met by the general taxpayer as part of the resource budget of the Department for Constitutional Affairs. The taxpayer’s contribution is made up of two elements: potential fee income forgone under the system of

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remissions and exemptions; and fees set below full-cost levels—that is, they would not cover the total cost even if none was remitted. This is currently the case with many fees for family proceedings generally and for civil proceedings in the magistrates’ courts.

In 2005-06, the latter subsidy was partly offset by the fact that civil fees in the county courts and above recorded significantly more than the cost of these proceedings. As the noble Lord, Lord Kingsland, observed, the over-recovery for that year came to some £34 million. That arose partly from the difference between forecasts made in June 2005 and the actual outturn and partly as a result of the new costing model identifying a more accurate allocation of cost between services. The Treasury agreed that the over-recovery can be phased out over the spending review period of 2007.

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