The recent debate on the level of court fees was diverted by Lord Irvine's attack on "fat cat" lawyers, but should the Lord Chancellor have run a different argument? asks Roger Smith. Roger Smith is director of the Legal Action Group.
Those that live by the sword have a tendency to die by it. Lord Irvine might do well to remember that. The intemperate rhetoric of his attack on "fat cat" lawyers may be hard to disown.
The role of the rank of Queen's Counsel as a market-rigging exercise should now be up for discussion. In the meantime, public debate should not be diverted from the subject that was actually under discussion in the House of Lords at the time: court fees.
Lord Irvine's attack was all the more surprising because he did not need to make it. Massively increased court fees are really Lord Mackay's problem, not his. The Labour Lord Chancellor could have run a totally different argument: inherited problem, outrageous Tory decision, caught by estimates, tax rises politically impossible, Labour's financial prudence, have to live with what we have got, see if we can soften the edges. But no. The advocate got the better of the politician.
The debate was led by Lord Ackner. He, in his time, has displayed enough combative advocacy to have made the celebrated, and somewhat unlikely, comparison of Lord Mackay to Adolf Hitler. Lord Ackner's tormenter on advocacy rights has outraged him once more.
In January, Lord Mackay, perhaps by then demob happy and giving up much pretence of equity, attempted to do away with automatic remission of fees and discretionary exemption for those who were otherwise too poor to afford the new high rates of costs. Fees would have been met for those on legal aid.
The then Lord Chancellor's plans were blown out of the water by the good Mr Justice Laws who, by luck or otherwise, was allocated the case challenging government policy. This was a test that a prime advocate of judicial power like Sir John was never going to fail.
Back at the debate, Lord Irvine was still claiming that the main barrier to justice was not court fees but lawyers' fees. Sir John had thought differently: "the impost of court fees is, to my mind, subject to wholly different considerations. They are the cost of going to court at all, lawyers or no lawyers. They are not at the choice of the litigant, who may by contrast choose how much to spend on his lawyers."
Judicial intervention led to rapid political response and Lord Mackay backtracked. Not all the poor's ground was regained. Hence Lord Irvine's embarrassment. The present position is that only people in receipt of income support are exempt from payment of court fees (together with family credit in family cases).
There are, however, a raft of other means-tested, government benefits such as the income-related job seeker's allowance. Recipients of such benefits are entitled only to discretionary remission on application. Usually, but not always, this will be granted, if only after a delay which might be fatal in some cases where time will be of the essence. For example, when someone wants to suspend a warrant for eviction, or needs urgently to apply for a variation of payments on a judgment debt.
Lord Irvine deployed a second advocate's trick in the debate: setting up the argument of straw and then demolishing it. Thus, he argued that the question "lurking beneath the question on the order paper" was that there should be no court fees at all.
This was not the case, as Labour's own Lord Mishcon pointed out. No known members of the House of Lords argues this case: all accept that some fees are reasonable. The issue is to find the right level that raises much needed finance but does not impede access to the courts for the poor.
Oddly enough, there are signals that Lord Irvine might actually be about to announce an extension of automatic exemption to people in receipt of means-tested benefits. The cost is likely to be peanuts: present policy is manifestly unreasonable. Why not claim the credit for a minute adjustment of policy at little or no cost?
For the fat cats of the Bar, litigation is, indeed, a bowl of cream. Unfortunately, for the poor and disadvantaged, it can be the only way of preserving the security of their home, their person, their family or securing some other rights. Advocates can forget that.