Subordinate Legislation
The first item on the agenda is subordinate legislation. As members can see, we have five negative Scottish statutory instruments to consider. For two of them, motions to annul have been lodged. The Deputy Minister for Justice, Dr Richard Simpson, will attend the debate on both those instruments.
Court of Session etc Fees Amendment Order 2002 (SSI 2002/270)
The first motion to annul relates to the Court of Session etc Fees Amendment Order 2002. I invite Pauline McNeill to speak to and move the motion.
Thank you. I have lodged a motion to annul so that the committee may discuss the principles behind this negative instrument. Representations were made to me by a number of MSPs and by the Scottish Trades Union Congress. The minister will be aware that the STUC was concerned that it was not consulted on the instrument. I was satisfied with the Executive's response to that concern, in that it has made commitments for the future, but I feel that we have to discuss with the Executive the general policy on full cost recovery of fees in civil courts.
In the main, the instrument would increase costs only in line with the rate of inflation, but it would increase the fees for proceedings before a judge by much more than that. The Executive may say that it has already made a compromise on those fees and that, after listening to what people had to say, the increase that was proposed has been reduced to an uplift of 25 per cent. However, the Parliament has never had the opportunity to discuss its attitude to the cost of civil justice, which is a live issue especially for the Justice 1 Committee, which has had an interest in the cost of civil justice as part of its inquiry into legal aid. Can the minister offer the committee a future discussion about the general policy on the cost of civil justice?
I feel strongly that it is hard to justify increasing the fees for proceedings before a judge by 25 per cent. At least one petition that the Justice 2 Committee has dealt with—the petition from the victims of asbestos—will be directly affected by the increase in the cost of justice because the petitioners were not covered by legal aid. The costs for those who do not receive legal aid and must pay their own way to take ordinary actions such as divorce or personal injury will rise by more than the rate of inflation if the instrument is passed.
I am concerned by the legislation. It is right that we should at least have a commitment to a discussion in future on the principle of full cost recovery of fees. Otherwise, the committee will be asked to agree to other negative instruments that will also implement increases that are higher than the rate of inflation.
I move,
That the Justice 2 Committee recommends that nothing further be done under the Court of Session etc Fees Amendment Order 2002 (SSI 2002/270).
Does the minister wish to respond?
Let me give some of the background. The running of the sheriff courts and supreme courts—the Court of Session and the High Court—costs the Executive some £69 million a year. In addition, the annual salary bill for the permanent judges and sheriffs is £23 million. Under the current Administration, there are more judges and permanent sheriffs than at any time in our history.
We are under constant pressure to improve the quality and user-friendliness of court buildings. The committee will be aware of the need to provide for disability, witness protection and the separation of witnesses, which are all issues for which our court buildings need to be improved. That is not an inexpensive operation. At the moment, we cannot meet all the demands, but we are working to do so, because we believe that coming to court for civil business should be as stress-free as possible.
The question is whether the general taxpayer should foot the whole bill. There are those who subscribe to the view that the state should provide people with the means to settle their civil disputes when other means of settling them have not worked, but the Executive does not agree with that view. Why should the general taxpayer, most of whom will never see the inside of a court, subsidise those who use the courts to win a victory over another party or parties that often involves substantial sums of money for the winners?
I make one important exception to that statement of my views. I believe that we should assist people who cannot afford to pay court fees. That is why, for the first time ever, the Court of Session etc Fees Amendment Order 2002—and the matching order, the Sheriff Court Fees Amendment Order 2002—introduces a policy of exemption from fees for those who receive legal aid and for those in receipt of earnings-related state benefits. That policy change has been widely welcomed by all those who use the courts. We are not financing the change by passing on the costs to other court users, because the vast majority of individual fees will increase only by the rate of inflation.
I have received arguments that those whose income is only slightly above the benefits level may also struggle to afford fees. However, those who are prepared to pay for a solicitor will find that the court fees are on average only a fraction of the overall cost of going to court.
Pauline McNeill asked why the fees for proceedings in front of a judge will increase by 25 per cent, when all the other fees will increase only by the rate of inflation. We believe that judges' time is a precious resource. There are substantial pressures of work on the Court of Session. Indeed, Lord Bonomy's committee is sitting partly in response to those pressures. It is essential that the courts function as efficiently as possible, so that as many people as possible can have their cases heard with the minimum of delay.
I believe that part of the efficiency agenda means asking those who take up judges' time to meet a substantial share of the real cost of doing so. Of course, it will be the losers who pay for the costs. One judge sitting costs the taxpayer around £600 a day. The fees that we are asking for fall far short of that figure. Indeed, we are asking for payments in Scotland that are substantially less than those in English courts. The orders that we are debating today would put up the fee for appearing before one judge from £13 per half hour to £16 per half hour—an increase of £3. For appearing before the inner house, the fee goes up from £26 to £33 per half hour. If you feel that those figures are outrageous, you should compare them with plumbing fees. If you call out a plumber, you will pay a similar amount.
The average length of a court day is five hours. If the two parties to an action engage a single judge in their case for a whole day, the fees for each party would be £160, or £320 for two parties. I told the committee that an individual judge's time costs the taxpayer £600 a day, so under our proposals the taxpayer will continue to fund about half the real cost of those proceedings. At inner house level, the subsidy would be even greater, as the real cost of salaries is £2,000 compared with total fees of £660 in a two-party action.
Full cost recovery is a long way off. I have gone into the arithmetic to try to demonstrate that. Although the Executive is moving towards full cost recovery, we are a long way from that—at least in terms of charging at a realistic level for judges' time. That is deliberate. We consulted court users, although I take Pauline McNeill's point that we omitted to consult some other users, such as the STUC; that is an omission that we shall rectify in future consultations. Payments would have to rise to 100 per cent if we were to recover the real costs of the Court of Session. We were told that that was unacceptable and unaffordable, so we have listened and substantially moderated our proposal to a rise of 25 per cent at present, instead of 100 per cent.
What will we do with the extra fee income? It will go straight back into reducing the running costs of the Scottish courts. It frees up some money in the court service budget to do other things and there are lots of useful things that we can do, as I mentioned.
Why do I believe that the committee should reject the motion? I ask the committee to recognise that the order represents no more than a bit of good housekeeping and a reasonable approach to funding the real costs of the civil courts. It contains a number of good things, notably a provision to increase the exemption from fees for people on legal aid or state benefits. At the same time, however, I note that the motion reflects a real anxiety that court fees should not become a barrier to people seeking the help of courts to resolve disputes. I believe that increasing the costs of the courts to real time in the long term will mean that people are more likely to settle disputes. The asbestos dispute was mentioned, and almost all those cases have been settled. I do not know how many have gone to court, but I believe that the vast majority of those cases do not proceed to court. That is true of 95 per cent of all cases. Increasing the fees—although the increase is not substantial—puts one more bit of pressure on the defendant to say, "Is this actually worth tackling?" It pushes matters in that direction, and that is important. However, I accept that we must look closely at whether increasing fees creates a barrier to people in seeking help from the courts.
If the motion is withdrawn, I will undertake to review the impact of the fee increases after a year, and we will reflect on whether a further move towards full cost recovery should be contemplated. If we feel that that is something that we wish to move for, we will consult fully before any move is made to introduce another fees order. In addition, I will be happy to appear before the committee again to discuss the Executive's plans before they are finalised and before another statutory instrument is submitted to the committee under the negative procedure. Before we move further along that line, we need to consult further and we need to allow the committee to have a debate with the Executive on the exact nature of the move and on the proposals that would accompany it.
I thank the minister for that, because there have been concerns about the consultation or lack of it.
Brian Fitzpatrick intended to come along to speak to the motion this morning, but because of a fire at Falkirk High, the trains have been delayed substantially.
Many months ago I made the point to Jim Wallace that I have always been concerned that there is too stark a distinction between fairness in civil justice and fairness in criminal justice. I accept the minister's point about the taxpayer who might never see the inside of a civil court, but many taxpayers might never see the inside of a criminal court and they probably hope that they never will. I am keen that civil justice does not take such a backseat to criminal justice because, for many people, it is as important. Some people have no choice but to go to court and ask the judge to determine how their finances are separated in their divorce action, and there are people who have disputes with their employers who have no choice but to go to court.
As long as there is at least acceptance of my point that civil justice should not be regarded as less important than criminal justice, I am happy to accept what the minister said. His response has been fair, but it is important that not only the committee but the Parliament has an opportunity to think about whether its approach to the policy of full cost recovery in civil justice is one that we want to pursue. We are talking about one fee only and I have noted the statistics that the minister provided—I did not know that the figure was as high as 95 per cent. However, we might be heading towards much greater increases in the future and that is my primary concern.
Motion, by agreement, withdrawn.
Gaming Act (Variation of Fees) (Scotland) Order 2002 (SSI 2002/281)
The next order concerns the Gaming Act 1968.
I am not proceeding with motion S1M-3341, which would limit the debate to 20 minutes, because I am happy to place myself in the hands of the convener.
The order—SSI 2002/281—has two difficulties for me, which members will probably share. First, it deals with the cost of fees for gaming licences in casinos and bingo halls in relation to recovering the costs that are incurred by local authorities in administering the licences. However, no information is given to justify the six fees that are being increased—rises that range from 7 per cent to 30 per cent.
In the previous debate, the minister referred to an efficiency agenda. We appear to be accepting the Gaming Board for Great Britain's recommendations to which we as a committee are not privy. We are expected to rubber-stamp them simply because the minister has said that he has read the regulatory impact assessment and he is satisfied that the balance between cost and benefit is the right one in the circumstances. There is nothing in the papers that have been presented to the committee that shows he is right.
My second point concerns the general value that bingo has for people in Scotland. The following quotations are from a paper by Glass, de Leon, Marottoli and Berkman from the Harvard School of Public Health, published in the British Medical Journal on 21 August, 1999. The authors studied 2,812 elderly United States citizens and their participation in bingo over a 13-year period. I will give the committee three quick quotations from the article. The authors say:
"Our findings corroborate those … studies that have found a link between survival and social activities that entail little or no physical activity."
Moreover, they say:
"Public policy measures that reduce barriers to continued social engagement would be important interventions."
Finally, the authors tell us:
"Clinicians can add powerful new intervention tools by recognising the health benefits of social activities as complements to exercise."
The essence is that people, particularly older and widowed people who attend bingo, receive both mental stimulation that keeps them functioning at a higher level and social interaction that delays state intervention to support them. It will be of public benefit not to increase the costs of access to bingo.
On those two counts, I move motion S1M-3342,
That the Justice 2 Committee recommends that nothing further be done under the Gaming Act (Variation of Fees) (Scotland) Order 2002 (SSI 2002/281).
The motion will ensure that we do not proceed with these usurious increases in the costs of licensing for bingo and casinos.
The order is made under the Gaming Act 1968. The Gaming Board for Great Britain is the regulatory body for casinos, bingo clubs, gaming machines and the larger society and all local authority lotteries in Great Britain.
Gaming is generally a reserved matter and the board makes recommendations on the appropriate level of fees for the next financial year to the Department for Culture, Media and Sport. In Scotland, licences for the grant, renewal or transfer of a casino or bingo licence are administered by the local authority licensing boards. However, the power to vary the level of licence fees is devolved to Scottish ministers.
The policy intention is that the fees should be set at levels that meet the whole cost to the public purse of the licensing and administrative work that is carried out by licensing boards and the police in achieving the proper regulation of the commercial gaming industry. The fees usually change every year to reflect predicted changes in costs and demand, and the Gaming Board for Great Britain is best placed to make such forecasts.
That policy was endorsed by a recent National Audit Office report, which was published in 2000 and accepted by the House of Commons Public Accounts Committee. The NAO study found that the previous fee levels had not recovered the full costs of licensing in each sector and that there had been cross-subsidy between sectors of the gaming industry and of the industry as a whole by local authorities. In particular, the casino sector had been subsidising the bingo sector.
It is not expected that the fees will place an unreasonable burden on businesses. The largest increases relate to the grant of bingo licences and the transfer of casino and bingo licences, which are comparatively rare. Most operators will be paying renewal fees, the increases in which are relatively low.
It should also be remembered that the fee for the grant of a casino licence actually fell by £9,321 last year and that the fee for the transfer of a casino licence fell by £2,002. Although the cost of renewing a bingo licence rose by £437, the fees for the grant and transfer of a bingo licence were unchanged. In so far as the new fee levels are intended to ensure only that local authorities cover their costs, the financial impact on local authority licensing boards should, of course, be neutral.
The new fees were introduced in England and Wales on 1 April and the DCMS has received no representations about the new fee levels. Although the new fees were not introduced in Scotland until 15 July, no representations have been received here either.
I acknowledge Stewart Stevenson's comments about the Harvard School of Public Health paper, which I read with considerable interest. However, I feel that he should be making representations to the health department for it to subsidise bingo. If it is felt to be a healthy pursuit, it should rightly fall within that department's purview and not the purview of the local authorities or the justice department. I wish him well in that particular endeavour.
If no other member wishes to contribute to this debate on the therapeutic qualities of bingo, I ask Stewart Stevenson to wind up.
I thank the minister for his quite full and understandable reply. I ask him to note that this committee and many other committees would have been helped if information on how the increases were arrived at had been delivered to the committee initially.
I knew that the BMJ was the minister's favourite journal, so I expected him to have read the article. The minister did not necessarily endorse the article's conclusions, and I accept that some continuing research seeks to establish the hypotheses that the article makes. Nonetheless, I refer the minister to the Executive's repeated claims that it seeks cross-cutting initiatives. We have the opportunity to take a decision, or at least to allow the Parliament to consider a decision, that would mean not necessarily proceeding with the Gaming Board for Great Britain's recommendations, but allowing casinos to continue to subsidise bingo, since there is a fair probability that the bingo sector provides a health benefit, which is not suggested for the casino sector. On that basis, I will test the committee's opinion by pressing my motion to a vote.
The question is, that motion S1M-3342, in the name of Stewart Stevenson, on the Gaming Act (Variation of Fees) (Scotland) Order 2002, be agreed to. Are we agreed?
No.
There will be a division.
For
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
Stevenson, Stewart (Banff and Buchan) (SNP)
Against
Aitken, Bill (Glasgow) (Con)
Barrie, Scott (Dunfermline West) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
The result of the division is: For 2, Against 4, Abstentions 0.
Motion disagreed to.
That concludes the minister's involvement in the meeting. I thank him and his officials for attending.
Sheriff Court Fees Amendment Order 2002 (SSI 2002/269)<br />Act of Sederunt (Fees of Solicitors in the Sheriff Court) (Amendment No 2) 2002<br />(SSI 2002/274)
Act of Sederunt (Fees of Witnesses and Shorthand Writers in the Sheriff Court) (Amendment) 2002 (SSI 2002/280)
No motions have been lodged on the other Scottish statutory instruments that the committee is to consider. There is no controversy about them. Does the committee agree to note the instruments?
Members indicated agreement.