Judges declare court fee hike a bar to justice

Access to the courts is a constitutional right which cannot be overridden by the government without the clearest possible sanction by Parliament, two judges declared yesterday in a crushing judgment against the Lord Chancellor, Lord Mackay of Clashfern.

The ruling - in the first ever contested judicial review to succeed against a Lord Chancellor - declared illegal part of swingeing increases in court "entrance" fees. The decision leaves in disarray the new regulations introduced in January by Lord Mackay.

Lord Justice Rose and Mr Justice Laws upheld a test complaint by John Witham, a former businessman now dependent on benefit, that the Lord Chancellor had acted beyond his powers by abolishing an exemption from fees for people on income support and the right of others on low incomes to apply for reductions.

Mr Witham, 50, from Essex, could not afford the new pounds 500 fee to issue a High Court writ to bring an action for libelagainst an insurance company, but he got legal aid to pursue the judicial review.

The judgment is as much an indictment of the Treasury as of the Lord Chancellor. The new regulations raised the High Court fee from pounds 120 and introduced rises of between 50 and 150 per cent in other civil proceedings, in line with government policy to make the courts self-financing. Lord Mackay made the new rules under section 130 of the 1981 Supreme Court Act, but Mr Justice Laws said the effect was to "bar absolutely" many peoplefrom seeking justice from the courts in a wide-ranging variety of situations, including debt and housing cases.

"Access to the courts is a constitutional right," he said. "It can only be denied by the government if it persuades Parliament to pass legislation which specifically - in effect by express provision - permits the executive to turn people away from the courts."

Leave to appeal was refused, which means Lord Mackay would have to apply to the Court of Appeal if he wants to contest the decision. Unless he does so successfully, the ruling has the effect of reinstating the protections for people on low incomes.

Mr Witham said: "Thank God we live in this country and are subject to the laws of this country."

The ruling was hailed by legal rights groups and the Law Society, who called on Lord Mackay to bring back the exemptions in the county as well as the higher courts.

Vicki Chapman, policy officer for the Legal Action Group, which supplied evidence on hardship cases to the judges, said: "This judgment is a devastating blow to the Lord Chancellor. Justice which is available only to those who can afford substantial fees in no justice at all."

Geoffrey Bindman, of Bindman & Partners, the solicitors in the case, said: "The judges are saying that where the government tries to take away basic rights, they will intervene."

Mr Justice Laws - the government's chief counsel before his appointment to the High Court bench - has already made clear extra-judicially his belief that some rights are fundamental, even under the UK's unwritten constitution.

After posing the question "do we have constitutional rights at all?" in yesterday's judgment, he said: "The right to a fair trial, which of necessity imports the right of access to the court, is as near to an absolute right as any I can envisage."

Lord Justice Rose said there was nothing to suggest Parliament ever intended "a power for the Lord Chancellor to prescribe fees so as totally to preclude the poor from access to the courts".