§ 3.10 p m.
§ The Lord Chancellor (Lord Irvine of Lairg)
My Lords. I beg to move that this Bill be now read a second time. This year, the gracious Speech had at its heart the need to maintain a balance between rights and responsibilities. Reform of the criminal justice system is key to achieving that balance.
This Government have already achieved a great deal on crime. The British Crime Survey indicates that, overall, crime has fallen 22 per cent since 1997. We have beaten our pledge to halve the time from arrest to sentence for persistent young offenders by cutting it from 142 to 68 days; and we have reduced juvenile re-convictions by over 14 per cent in the first year of operating our youth justice reforms. But we have to do better still.
In 2000–01, 5.17 million crimes were recorded, but only 19.8 per cent—less than one in five—resulted in an offender being brought to justice; that is, being cautioned, convicted, or having an offence taken into consideration. So it is clear that, whatever our successes, the criminal justice system is still not working as well as it should. In 2001, Labour's manifesto made clear the Government's intention,to re-equip the Criminal Justice System to deliver justice for all—the victims, the public and the defendant".The Bill is central to the Government's programme of reform as set out in the White Paper, Justice for All. Together with the Criminal Justice Bill, it forms a coherent package designed to reduce crime, bring more offenders to justice and offer a better service to those who use the courts. So I shall say a little about some of the major themes of reform and how they find expression in the Courts Bill.
But, first, let me say this: we cannot reform the criminal courts without regard for the civil and family jurisdictions. There is a good deal of interplay among the three. For example, some members of the judiciary sit in each jurisdiction. The Crown Court and county courts share the same building in 48 locations; and magistrates, of course, deal with criminal, family and civil matters. So the Bill brings forward improvements across the court system. Its fundamental aim is to deliver modern, efficient courts, free from avoidable delay, in touch with the communities they serve and more responsive to the needs of their users.
The Government's plans for reform of the criminal justice system are broad based, but changes to law practice and procedure must be underpinned by the 14 right infrastructure. At present, magistrates' courts are administered by 42 separate magistrates' courts' committees, while the county courts and supreme court are administered by the Court Service, an executive agency of my department. Sir Robin Auld—for whose incisive report the Government are grateful—found this division to be a barrier to the effective operation of the courts. The Government agree. The Bill therefore makes the Lord Chancellor responsible for the administration of all courts in England and Wales below the House of Lords—civil, family and criminal. I intend to establish a new, single, executive agency to run the courts administration. This will replace both the existing Court Service and the magistrates' courts' committees. It will be accountable to Parliament through my department and will offer an improved and more consistent level of service to court users. It fulfils our White Paper commitment and is in line with the Prime Minister's principles of public service reform.
The new agency will have a strong local element and greater accountability through court administration councils which will work in close partnership with local managers. These councils will increase very significantly the opportunities for local people to have a real say in the way in which court services are delivered in their area; and, for the first time, this will include all court services, not just the magistrates' courts. The Lord Chancellor will be obliged to give due consideration to recommendations made by the court administration councils when discharging his general duty to provide an efficient and effective system for running the courts.
The Bill will bring the magistrates' courts and the Crown Court closer together. Closer integration will remove unnecessary geographical boundaries, allowing cases to be heard at the most convenient location, taking account of the needs of victims, witnesses and defendants, and helping to reduce delay. It will bring about greater consistency in practice and procedure between the criminal courts; and it will remove statutory restrictions, allowing for more flexible use of the court estate and more effective deployment of judges and magistrates.
A new structure that facilitates rather than hampers the effective management of the courts will be complemented by an entirely new case progression system for criminal cases. We will introduce this largely by administrative means, although supported by provisions in the Bill. The case progression project, led by my department, will see that cases progress with greater efficiency and less delay through the criminal justice system. It will support and pull together current legislation, new legislation and other administrative initiatives to help us bring more offenders to justice and to give victims and witnesses a better deal.
One of the main strands of the Government's reform package is to ensure that sentencers have the means to impose punishments that are appropriate to the crime. The Government's position on sentencing is reflected in the new sentencing framework introduced by the Criminal Justice Bill. Protecting the public from violent, sexual and other serious offenders remains our 15 priority. But the courts must strike the right balance between the need to deal effectively with serious and violent crime and the need to keep prison as a last resort in other cases. The Government share the view of the noble and learned Lord the Lord Chief Justice: imprisonment only where necessary and for no longer than necessary. The Bill supports this, with provisions to improve the system for the enforcement of fines.
Fines are imposed in three-quarters of all criminal cases sentenced in the magistrates' courts. Yet the most recent statistics show that, as at September this year, the national payment rate is only 57 per cent. That is clearly not good enough. We are considering carefully the recommendations made by the Public Accounts Committee in its recent report on the Collection of Financial Penalties in the Criminal Justice System. Many of the recommendations for legislative change in that report are being taken forward in the package of measures included in the Bill.
I turn to the specific provisions of the Bill. The core is contained in Part 1—
§ Lord Maclennan of Rogart
My Lords, before the noble and learned Lord leaves the question of nonpayment of fines, have the Government given consideration to further pilot schemes on the unit fine system which was abolished by Mr Kenneth Clarke when he was Home Secretary before there had been an opportunity for the scheme to be tested properly?
§ The Lord Chancellor
My Lords, the Government continue to be of the view that the fine is an important form of disposal in criminal cases. It is a means of keeping people out of prison, which is highly important. The fine, however, must be seen to be an effective disposal; otherwise magistrates will not use it and the public will not have confidence in it. All options and alternatives to fines are under active consideration.
The core of the Bill, as I said, is contained in Part 1. That gives the Lord Chancellor responsibility for the new administration of the courts. The new executive agency that we intend to establish will be an entirely new organisation. This is not a take-over of the magistrates' courts by the Court Service, nor is it a centralising measure. The new agency will build on the undoubted strengths of each of the existing systems and will embrace greater flexibility, efficiency and responsiveness to local needs. The agency will have a strong centre, as the higher courts do now, to set strategic direction and standards. That will be allied to decentralised management and local accountability.
The agency will be headed by a chief executive, and local areas will be managed by agency chief officers. They will work in co-operation and partnership with local court administration councils established by Clause 4. Last Wednesday, I placed in the Libraries of both Houses a statement on the principles that will form the basis of the agencies framework document. That explains how I expect the agency and court administration councils to work together.
16 Court administration councils will comprise magistrates, judges and representatives of the local community so that the community is fully involved in the management of courts. At the moment there is no formal local accountability in the Court Service. The administration of magistrates' courts is accountable only to a committee primarily composed of magistrates. The Bill will greatly enhance the input of the local community. Councils will approve the area strategic plans at the beginning of the year and will receive regular performance reports so that they can propose remedial action where necessary. Chief officers will be required to seek the agreement of the councils on issues of particular importance. Any proposals to open, close or relocate courthouses will be brought forward jointly by local councils and chief officers, wherever possible. Where not, it will be open to both councils and chief officers to make separate proposals. Any proposals to close courthouses will continue to be subject to wide consultation with the local community. We will establish a process for appeals to Ministers where local agreement is not reached.
Areas performing well will have greater freedom and flexibility to operate. Those performing badly will see more support and intervention. It will allow us to set in place a clear framework of national standards and tackle poor performance and unacceptable variations. For example, fine enforcement varies from over 80 per cent in some MCCs to under 40 per cent in others. At the moment there are almost no mechanisms to address poor performance in MCCs. Achieving all that will involve far more than merely merging existing administrative bodies. A team comprising staff from magistrates' courts and my department is working in consultation with many others, including the judiciary and the magistracy, to develop the detail of the proposed agency.
The arrangements in Part 1 are the result of much consideration within government and discussions with several bodies that represent people working in magistrates' courts. They are also in line with Sir Robin's recommendations. They strike the right balance between the central direction needed to raise standards and the need for all courts, not just magistrates' courts, to be accountable to local communities. I am convinced that our proposals, which are supported by, among others, the judiciary, the Bar, the Law Society and the Association of Justices' Chief Executives, represent the best way of delivering decentralised management and local accountability within a strong national framework.
Part 2 will give magistrates national jurisdiction. It will allow them to be reassigned quickly if they change address, to sit at a court near their work, or to provide for circumstances where it is inappropriate for a local Bench to hear a case. However, Clause 10 places the Lord Chancellor under a statutory duty to assign magistrates to local areas. Under no circumstances will magistrates be pressed to sit in areas where they do not wish to sit.
17 Clause 31 and Schedule 2, together with Clause 89, provide for the improvements to fine enforcement that I mentioned earlier. Clause 89 will put the burden on the defendant to disclose his income and expenditure so that courts can match a fine to an offender's ability to pay, and to avoid potential enforcement problems later.
Clause 31 will enable the appointment of specific staff in courts who will be responsible, on behalf of the court, for ensuring that fines and compensation orders are paid. Under Schedule 2, fines officers will have discretion to vary payment terms, but only on application by the offender. They will be able to impose sanctions on defaulters who refuse to co-operate; for example, vehicle clamping or restricting access to credit by entering the fine on the new register of judgments.
Let me correct a misapprehension that has appeared in the press. Fines officers will not have the power to increase fines. Schedule 2 provides for a discount for prompt payment and an increase if the offender fails to pay on time, but that increase will be set by the court. The court will explain the increase to the defendant when sentencing, and the increase will only take effect if, and when, he or she defaults. Even then, the offender will have the opportunity to avoid the increase by contacting the fines officer and agreeing and complying with new payment terms.
Let me make this clear: for any discretionary decisions taken by fines officers, such as the sanctions I mentioned or a refusal to vary payment terms, there will be a full right of appeal to the court. Accordingly, I am satisfied that the package of measures complies with our obligations under the European Convention on Human Rights.
The measures are designed to ensure that there are strong incentives for offenders to stay in touch with the court during the "lifetime" of the fine, making it easier for the court to trace them, and to deal with them, should they default. The legislation provides for piloting the new system so that the best package of arrangements can be introduced nationally in the light of experience. In parallel with that, we will develop within the community legal service, which now has full nationwide coverage, a network of support and advice for those having genuine difficulty with payment of fines. Taken together, those measures will put in place a robust but flexible framework for fine enforcement, ensuring that sentencers and the public can have full confidence in the efficacy of the fine as a punishment.
In support of the case progression project, to which I referred earlier, Clause 40, together with Schedule 3, gives judges and magistrates—for the first time—the power to make binding rulings and directions at pre-trial hearings in criminal cases that are to be tried summarily in the magistrates' courts. The powers will mirror those already available in Crown Courts.
Part 4 covers court security, which is obviously of great importance in all court buildings. The proposals have been driven in part by the Auld review and in part by the recommendations of the fundamental review of court security which I ordered last year following the 18 attack on her Honour Judge Goddard at the Old Bailey. Part 4 will help to make courts even safer, particularly for witnesses and victims, through the provision of more effective court security presence. It defines the role and powers of new court security officers who will control and maintain security in court buildings and complement the physical improvements in buildings and courtroom security that we will continue to make.
Part 5 creates a new, independent inspectorate of court administration. It will cover all administrative and support services, including security services, in Crown Courts, magistrates' courts and county courts, as well as the children and family court advisory and support service. It will ensure an improved and more consistent level of service to all court users by highlighting best practice and reporting on inefficiencies.
In Part 6, Clauses 58 and 59 aim to improve the public's perception of the justice system by allowing a female judge of the Court of Appeal to be formally referred to as "Lady Justice" and by granting the Lord Chancellor power to modernise other judicial titles further. Those are relatively minor, but none the less essential, provisions. The recent appointment of Dame Janet Smith to the Court of Appeal was a timely reminder of the need to put that right. Clauses 60 and 61 will allow greater flexibility in the deployment of judicial resources.
Part 7 is aimed at greater consistency of practice and procedure in the criminal and family jurisdictions. Clause 65 will create a statutory criminal procedure rule committee to make rules determining practice and procedure for all criminal courts in England and Wales. At present there is no single forum for discussing improvements to the trial process, and changes to rules therefore develop piecemeal. Charged with a modernising and streamlining agenda, the new committee will underpin the goal of greater integration in, and consistency across, the criminal justice system. Clause 72 will create a single family procedure rule committee. This will help promote consistency of approach across the various courts hearing family disputes.
Clauses 88, 92 and 93 are the final clauses to which I shall refer. Clause 88 enables the courts to award costs against third parties whose serious misconduct causes cases to collapse or be delayed. Tins would shift the burden of wasted criminal costs from the taxpayer to the third party responsible for the wastage. This will fill a gap in criminal courts' powers on costs and should deter conduct that might unnecessarily delay or prolong criminal proceedings, or cause them to be abandoned.
The provisions in Clauses 92 and 93 will enable the civil courts to award damages in personal injury cases in the form of periodical payments rather than a lump sum. This will provide a more appropriate way of compensating claimants and will ensure that they have the money to which they are entitled for as long as it is needed without the anxiety of the award running out if they live longer than expected.
19 This is a package of measures which, together with the Criminal Justice Bill, furthers the Government's programme to reform and modernise the criminal justice system. The Courts Bill is crucial in achieving clarity, credibility and consistency in the criminal justice system and ensuring that we provide justice for all. But it goes further than that. It will deliver modern, efficient courts across all jurisdictions, with fewer delays, greater accountability to local communities, and better responsiveness to the needs of their users. I commend the Bill to the House.
§ Moved, That the Bill be now read a second time.—(The Lord Chancellor.)
§ 3.32 p.m.
§ Baroness Seccombe
My Lords, I thank the noble and learned Lord the Lord Chancellor for his presentation of the Government's proposals. It is a privilege to speak at this stage in this Second Reading debate. I do so with humility, as I am very conscious that many of those who are to speak this afternoon are distinguished legal practitioners whose views have been assembled by expertise and years of experience in courts of all types on a daily basis. My only claim is to have had the honour of being a member of my local magistrates Bench for over 30 years and to have served as its chairman at a very interesting time in its history.
This is an important and necessary Bill and one that we hope will improve the efficiency of the court system, as I believe this is a key to respect for justice in this country. A more efficient system where cases are processed more quickly would enable victims of crime to put their experiences behind them and continue with their lives.
However, we do have concerns regarding the Bill. The first of these relates to fines. The most frequent penalty imposed by magistrates is a financial one. The enforcement of these fines has always seemed to me an essential element of sentencing policy. The fine imposed has been, or should have been, the result of thorough scrutiny of the defendant's financial and personal situation. It is therefore vital that the fine is paid as directed by the court, and if not the defendant must be brought back to court to explain why not.
I remember some years ago when a defendant was giving his reasons to the court as to why he had not sent the agreed weekly sum as ordered and promised. Quoting his outgoings he said that he had rented a new television that was costing him £10 per week. As he was on benefit he was asked if he did not think that was excessive. In reply he said not at all, it was a 32-inch screen and very good value. His weekly contribution to the payment of his fine obviously figured low on his list of priorities until it was pointed out in no uncertain terms that if he did not pay as directed then something unpleasant would happen and a more serious penalty would be imposed. Inability to pay can always be approached with sensitivity and understanding, but unwillingness to pay should not be tolerated.
I have never understood why it was considered unacceptable for interest to be added if a fine was just ignored. After all, in any hire-purchase scheme, where 20 there is a default high rates of interest are added. To leave the level unaltered is unfair to those who often make sacrifices to pay on time. Therefore I was pleased to note that the Government were addressing this issue in the Bill. We understand there would be sanctions for those who simply would not pay but I must confess to being unsure how these would work in practice.
We are told, for example, that if a person does not pay his fine his car may be clamped as a penalty. However, this seems an arduous and time-consuming task. The new fines officers would have to find the offender's car, make sure it is not co-owned with an innocent party, clamp the car and presumably value it if it does have to be sold to pay the fine, all of which sounds an expensive process and does not seem to be an effective use of the resource of the new fines officers.
One of our main concerns with the Bill is that we feel most strongly that giving these fines officers the power to increase and decrease fines for early or late payment is wrong. These officers—who could be civil servants, but it seems that they could also be the employees of a private company; the Bill does not seem to prevent this—would exercise a power that should only ever be exercised at the discretion of the court. Any possible increase or decrease should be spelt out at the time of sentence. If fines need to be varied, this should be the job of the magistrates. Otherwise this surely has implications for the Human Rights Act. People have a right to a fair and public hearing and, if convicted, the right to be punished by an independent and impartial tribunal.
Continuing on the subject of fines, while we welcome a clear structure, we are concerned that a national framework of standards and direction may mean the Government set rigid targets which would interfere with the application of justice. I hope we can obtain an assurance that this would not be the case.
Another major concern we have with the Bill is the Government's plans to abolish the magistrates' courts committees, which are made up of local magistrates and other local figures, and replace them with court administration councils. This change puzzles me somewhat, as in the White Paper on which this Bill is based, Justice for All, the Government stated that court management decisions would be taken locally by local management boards. The White Paper clearly stated:We expect the decision making to be decentralised to the local management boards, so that resources can be managed flexibly to meet local requirements".However, after reading the Bill, I do not think the new CACs meet these requirements. Far from providing genuine local management and accountability of local justice, they appear to be merely consultative bodies with no real power other than the rather ambiguous "red card" rights to refer any issue to the national level, meaning back to the centralised power of the Lord Chancellor. It is also the Lord Chancellor who would appoint the members of CACs and the Lord Chancellor who would provide councils with guidance about the way in which they should discharge their functions, although we are not privy to this 21 information in the Bill. It would be most helpful if the guidance could be published by the time we reach Committee stage.
It would seem that the only saving grace to these councils is the inclusion of at least one lay magistrate, which we welcome and believe is essential as they will have a real and local knowledge of the needs of justice in the area.
Having served as a magistrate for many years, I have first-hand knowledge of just how essential it is to have a good working relationship with your justices' clerk. It is a relationship of mutual trust and respect which can be cultivated only over a period of time. I was therefore unhappy to read in the new Bill that justices' clerks will no longer be appointed to a particular petty sessions area as these will no longer exist. I hope that that does not mean that they will no longer be assigned to one particular area. It would be a great loss to the system to disregard the importance of a sustained relationship and most disruptive to the working of the court.
I should also like to mention the appointment of lay justices in the Duchy of Lancaster. This has traditionally been the responsibility of the Duchy and is yet another provision in this Bill which moves power to the Lord Chancellor.
Lastly, I understand that Clause 11 will replace Sections 7 to 9 of the Justices of the Peace Act 1997 which has the effect of abolishing supplemental lists. I must state that I am wholeheartedly opposed to this measure which strikes me as a mean spirited attack on people who have given at least 15 years of their life to the Bench and the community. This is an issue which we shall oppose unreservedly. Those on the supplemental list often, for example, sign passports and witness signatures which save many people the chore of finding an appropriate person. It costs no money to retain a list and gives pleasure to a magistrate on retirement to be included on what might be called a "roll of honour".
I fear that this Bill, like so many that come before your Lordships' House, is described as decentralising by the Government yet on study reveals that it is completely the opposite. It takes power to the centre and leaves the Lord Chancellor in control at the expense of local autonomy.
Much of this important Bill is acceptable but I am sure that as it proceeds through the House there will be many issues which will cause lively debate. On these Benches we look forward to the challenge of ensuring that it will go to another place a better Bill which will improve justice throughout the country.
§ 3.42 p.m.
§ Lord Goodhart
My Lords, there is much in the Bill that we on these Benches welcome. Several of its parts raise no issues of principle although their detail may still need to be reviewed. Those include Part 4 on the enhancement of court security, Part 5 on the inspection of courts' administration and Part 6 on the changes to the titles of the judiciary and judicial flexibility.
22 By far the most controversial element—it is seriously controversial—is the abolition of the magistrates' courts committees and the replacement of them, and of the Court Service, by a new agency accountable to the Lord Chancellor. We would be willing to accept the principle of merger but we would do so only on the basis that the Bill provided for a high degree of devolution to local management, and the Bill does not so provide.
On the face of the Bill the court administration councils will have only a consultative role and no executive role. They are not a replacement for the magistrates' courts committees. Management matters will be solely a matter for the executive agency. There is nothing whatsoever in the Bill about how that agency will actually work. There is nothing in the Bill that even recognises its existence. As the noble Baroness, Lady Seccombe, pointed out, the Government stated in their White Paper that management decisions would be taken by community-focused local management boards. That proposal has been scrapped. According to the latest proposal in the statement that the noble and learned Lord the Lord Chancellor placed in the Library last week. decisions at the local level will be taken by local chief officers. The statement says that the court administration committees will work in partnership with the local chief officers.
The statement makes some helpful remarks. It states in paragraphs 14 and 15:On issues of particular importance chief officers will be required to seek the agreement of the local council. At the beginning of the year councils will approve the area strategic plan, its staffing structures and recruitment and retention strategy and spending priorities for the year. The relationship between the local council and the chief officer will be crucial to an area's success. Councils will be involved in the selection of the local chief officer. In addition, councils will have a right of access to the national chief executive about any issue including managerial performance".Those remarks are welcome and go some but by no means all the way to meeting our objections, or they would do so if they were on the face of the Bill. But there is nothing of that on the face of the Bill itself. The proposal regarding the involvement of the court administration councils could, under the Bill, be revoked instantly without any parliamentary involvement whatsoever. We need to ensure that the role of the court administration councils will be spelt out much more fully on the face of the Bill. Details of the councils' role should be contained in a statutory instrument subject to scrutiny by Parliament and not simply in guidance subject to no parliamentary control whatsoever. We also need guarantees that members of the court administration councils will be appointed on the basis of the Nolan rules and appointments will be subject to supervision by the Commissioner for Public Appointments.
I must make clear that we on these Benches will not support the abolition of magistrates' courts committees unless the court administration councils are given wider and more effective powers on the face 23 of the Bill. What we want is the equivalent for courts of NHS trusts. What the Bill offers is the equivalent of community health councils and that will not do.
I turn to other matters. We are concerned about the provision in Clause 2 to contract out non-judicial services. We do not necessarily object to that in principle. Some services could, indeed, be contracted out. But, even so, we think that the decision, for example, to contract out the role of providing court security to a private security agency, which is clearly a possibility, should be taken only after consultation with the four senior judges. Can we be assured that the duties of fines officers are not among those that can be contracted out?
I wish to consider the role of fines officers whose establishment we welcome in principle. The provision appears to apply only to fines imposed by the magistrates' courts. Why cannot it be extended to fines imposed by the Crown Court as well? There is no doubt that the rate of fine collection is too low. The recent report of the Public Accounts Committee shows that the collection of fines is both ineffective and almost random throughout the country. For instance, rates of collection are 34 per cent in urban Merseyside; 86 per cent in urban West Yorkshire; 89 per cent in rural Dorset; and 36 per cent in rural Cambridgeshire. Having a fines officer with the specific duty of collecting fines is a good idea, although we are concerned that in magistrates' courts the power will be exercisable by the clerk and not necessarily by the magistrates themselves. We certainly support discounts for prompt payment. However, we have reservations about the proposed increase in the fine itself on default. Like the noble Baroness, Lady Seccombe, I believe that there is much to be said for requiring the payment of interest on default rather than an increase in the fine itself. We believe that an injustice could arise if an increase in the fine itself is imposed that is not linked to the length of the default. It is true that the most vulnerable people are likely to have the most difficulty in paying.
The most controversial element in the role of the fines officer is the clamping order. It could lead to the loss of the defendant's job, if the defendant uses his car for his job or for travelling to his job when there is no available public transport. Clamping could penalise someone other than the fine payer who needs the car for similar purposes—the defendant's spouse or partner, for example. If the defendant uses a car registered in someone else's name, a clamping order cannot be made, which might encourage people not to register vehicle transfers, to register a transfer in someone else's name or to obtain a bogus disabled badge. If clamping orders are to be made at all, which we believe is doubtful, although we accept that there should be pilot trials, they should be made only by a magistrates' court and not by a fines officer.
We have no objection to the change in judicial titles in Part 6, but we wonder whether it should not be extended to Lords of Appeal in Ordinary. When, as is long overdue, a woman is appointed as a Law Lord, will she remain as a Lord of Appeal rather than a Lady 24 of Appeal? Why should the Law Lords be described as "ordinary"? Some of them are extremely extraordinary.
Passing on to Part 7 and the rules of procedure, we welcome plans for unified, criminal and family procedure rules, with their own rules committees, on the model of the civil procedure rules. However, we are concerned that power is to be given to the Lord Chancellor to alter the rules made by the various rules committees. A power to alter is, in effect, a power to make rules. The old arrangement for the Supreme Court Rules Committee and, later, for the Civil Procedure Rules Committee, provided for the necessary agreement of the Lord Chancellor to rules for the High Court and Court of Appeal. Agreement is one thing, but we believe that there should be no unilateral power on the Lord Chancellor to alter the rules. If the Lord Chancellor does not like the new rules, he is entitled to refuse to approve them. He can indicate to the committee what rules he would approve, and a compromise could no doubt be negotiated. We are wholly against the unilateral power of default. The same principles should apply to the criminal and family rules.
Fee orders, which are currently subject to no parliamentary control, should be made subject to that control. Some two years ago, the Lord Chancellor's Department increased court fees sharply. We believed that the move posed a serious threat to access to justice and wanted to challenge it but were unable to do so. It may be a convention that fee orders are not made subject to parliamentary control; if so, it is a bad convention that should be abandoned. Fees can, we believe, be a real deterrent to litigants and should be subject to control.
We welcome third party costs orders, but plainly the third parties must have the right to challenge allegations of misconduct at a proper hearing.
We strongly welcome the power to order the payment of damages by periodic payments as an alternative to payment by lump sums. However, that raises a number of points. First, we would like an assurance that the payments would have to be index linked, so that the real value does not decline as time goes on. Secondly, we agree that the right to payments should not be capable of being assigned, but we want to know what the position will be on the insolvency of the claimant. Will the trustee in bankruptcy have a right to seize future payments and, if so, on what condition?
Thirdly, and perhaps most importantly, we have received representations from representatives of the insurance business, pointing out the difficulties for insurers if payments are capable of being varied subsequent to the conclusion of the court proceedings. A strong case has been made out for at least providing that the power to vary should be exercisable only in a limited period from the time of the reward, so that the potential for increases is not left hanging indefinitely over the heads of the insurers for what could be decades rather than years.
25 I turn to a few general points. First, the Bill contains several Henry VIII clauses. Not all of them require the affirmative procedure when the statutory instrument to exercise the powers is introduced. After the row at the end of the previous Session over the Nationality, Immigration and Asylum Act 2002, I believe that we should move to a general rule that Henry VIII clauses should require the exercise of the affirmative procedure, even if the changes are minor, consequential and transitional. The noble and learned Lord the Lord Chancellor is making a face, but it is an import ant matter of principle that primary legislation should be capable of being changed only by statutory instruments that receive the approval of both Houses of Parliament.
Secondly, the administration of family courts is left in its existing condition—that is, it is still highly fragmented. That requires unification as well.
Thirdly, with regard to a wider reform of the court system, I regret that the Bill contains no modification of the circuit system. It dates back to the days of Henry IL who used it as a means of imposing royal authority throughout the kingdom. The assize system has been much modified in recent years, but the time has now come for the abolition of the system whereby High Court judges have to spend several months a year on the circuit. That must be a deterrent to the acceptance of office, especially for women. We should set up permanent High Court centres in each region of England and Wales, staffed by judges based in that region.
To sum up, there are strong objections to the abolition of the magistrates' courts committees unless the Bill provides for much greater devolution of powers over magistrates' courts to locally based court administration committees. That is an example of the continued centralising tendency of the current Government. We give a welcome, but in some respects a critical welcome, to the rest of the Bill.
§ 3.58 p. m.
§ Lord Woolf
My Lords, so far as I am aware, I am unique among chief justices around the world in being able to address your Lordships directly. I value that privilege but I am conscious that it should be used sparingly. I personally reserve its use for occasions when l consider that it will help the House in its deliberations to be aware of the judiciary's views on prospective legislation or other issues.
During the current Session this House is to debate two Bills that will have a major impact on the administration of justice: the Courts Bill, which is before your Lordships today, and the Criminal Justice Bill, which has just had its Second Reading in the other place. Because of its practical experience, the judiciary is, I believe, in a position to make a positive contribution to the debate on both Bills. I must warn your Lordships that not only am I intervening today; I propose to do so again on the Second Reading of the Criminal Justice Bill.
Subject to certain comments which I shall make later, I am glad to make it clear that the judiciary welcomes the Courts Bill. I am most grateful to the 26 noble and learned Lord the Lord Chancellor for the extent to which his officials consulted the judiciary on the Bill and, where appropriate, took account of its views. The result, I believe, is a better Bill, although I recognise that going through the procedures in Parliament it may be improved further.
Your Lordships will be well aware that the criminal justice system has suffered as a result of its constituent parts failing to work together effectively. There has been a deep divide between the magistrates' courts and the Crown Court. I hope that the Bill will go a long way towards establishing a unified criminal court with a unified administration. That unified approach, together with the changes proposed in Parts 2 and 6, should enable greater flexibility in the deployment of magistrates and judges. It should also ensure that cases are heard by judges of the appropriate level irrespective of the location of the hearing.
The senior judges are already holding discussions with magistrates and, I hope, making it clear that we—the judiciary—welcome magistrates joining the wider judicial family. My only concern with regard to the proposals that try to bring magistrates' courts and the Crown Court closer together is whether lack of resources will prevent full advantage being taken of that initiative.
What could help to ensure the success of the new unified approach is what at first sight may appear an unimportant reform. The criminal courts have lacked a common criminal code of procedure. In his seminal report, Sir Robin Auld recommended the establishment of a single criminal procedure rule committee whose task—under the chairmanship of the Chief Justice of the day—would be to produce a new procedural code and keep that code up to date.
As a result of the Access to Justice reforms, there is already such a civil procedure rule committee. It has made a significant contribution towards improving the civil justice system. The new criminal procedure rule committee will face a considerable challenge. Members of this House who are lawyers will, I believe, confirm that the plethora of criminal justice legislation of recent years has created a criminal justice system that is highly technical and of labyrinthine complexity. Indeed, one of our High Court judges recently approached me and said that his difficulty when sentencing a prisoner was to know whether it was better to pass the sentence and then ask the prisoner to sit down while going through the loops that judges are required to go through when sentencing, or to go through the loops first and then pass the sentence. That should not be so. If the new rule committee is given the opportunity, it will replace those technicalities—and the complexities—with contemporary flexible and efficient procedures. Because of the width of its membership and the standing of the proposed members of the committee, I also believe that the rules it produces will have the confidence of both sides of the profession as well as of the judiciary.
It is the shared sense of ownership that lies behind the success of the civil rules. One of the problems with the present multiple criminal rules of procedure is that 27 there is no such sense of ownership. Unfortunately, ignoring the proposed role of the new criminal procedure rule committee, which will be established by this Bill, the Criminal Justice Bill, if enacted in its present form, will add to the existing statutory procedural complexity and contribute to the delay in proceedings which I know the noble and learned Lord the Lord Chancellor wishes to reduce.
The Home Secretary appealed at Second Reading to people with a longstanding professional involvement and interest to play their part in making the Criminal Justice Bill a better Bill. I hope that the judiciary falls within that description because I have made recommendations on this aspect of the Bill. I am still awaiting an indication of whether they are to be accepted. I shall report back to the House in due course about how fortunate I am in having my recommendations accepted.
I shall spend my remaining time on Clause 87 which changes the role of the senior judiciary in relation to the setting of court fees. At present, the setting of court fees requires the consent of the respective heads of division. That was designed to provide a protection against excessive fees. But a predicament was created for the heads of the judiciary. To explain why the judiciary wants to give up what should be a valuable safeguard for civil litigants it is necessary shortly to summarise the background.
Historically, the cost of court accommodation and salaries and pensions of judges was borne by the state, the rest of the running costs being paid by fees levied on litigants. In the early 1980s, it was decided that accommodation costs should henceforth be borne by litigants by way of fees. In 1992, it was decided that judicial salaries should also be funded by litigants through fees. That significant change of policy was apparently made without any formal announcement or debate in Parliament. The current Treasury policy maintains that the full costs of the civil courts should be recovered from fee income less agreed exceptions, remissions and subsidies. I suggest that that policy is totally misconceived; so do the other heads of division. It ignores the public function that civil law and litigation perform; it ignores the social importance of civil law. For example, it ignores the fact that an appeal decision not only relates to the dispute in an individual case; it is also laying down the law for the future. It is not only important for the parties to the proceeding but also to other litigants who have similar disputes which require resolution.
As to accommodation, as noble Lords know, many of the courts are historic buildings—for example, the Royal Courts of Justice, which is the flagship of the common law system around the world. It is an absurdity, I suggest, that the cost of the Royal Courts of Justice should be taken into account and given a capital value in working out what court fees should be. That policy also ignores the costs of modernising the civil justice system. Under the present regime, the senior judiciary has felt compelled to agree levels of fees about which they are most unhappy. More importantly, the senior judiciary has, in doing so, 28 apparently endorsed a totally misconceived and unrealistic policy of the Treasury. The practical result is that the civil justice system is being starved of resources. The gains achieved as a result of the Access to Justice reforms, rigorously supported by the noble and learned Lord the Lord Chancellor, are in grave danger of being lost.
Our commercial court is celebrated around the world, the majority of its cases involving at least one litigant from abroad. Its present accommodation, I am ashamed to say, is a disgrace and plans that the Lord Chancellor had to replace it have had to be postponed for the time being and, I suspect, indefinitely. Throughout England and Wales, courts are deprived of the technology which has been repeatedly promised and which should be at the heart of the civil justice reforms to which I have referred. Those courts are struggling to provide an adequate service, relying on the loyalty of the judiciary and the staff. Whether they will be able to continue to achieve that is open to question. The Government's recent spending review suggests that providing a satisfactory system of civil justice for the citizens of this country is towards the bottom of the political agenda. It is forgotten that at stake can be a member of the public's home, a widow's damages or a citizen's human rights. That position is not tolerable.