Criminal Justice and Courts Bill
(10 years, 1 month ago)
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20:40 - Division on Amendment 166 - Ayes: 58 / Noes: 149 - Amendment 166 disagreed.
Lord Pannick
Lord Pannick (CB)
My Lords, this group of amendments is concerned with Clauses 74 and 75, and it relates to costs capping orders, or protective costs orders, as they were previously called. In a case that raises issues of public importance, the court has a power, before the case is heard, to set the maximum figure for the costs that a claimant will be required to pay should the claim not succeed. The object of such an order is to ensure that a claimant who raises an issue of public importance is not deterred from bringing the claim because of the risk of having to pay unquantified costs should the claim fail.
At the moment costs capping orders are a matter for the discretion of the court. They are rarely made, particularly in contexts other than environmental claims, which Clause 76 rightly recognises to raise special considerations because of an international convention, the Aarhus convention. The Minister, in correspondence, has helpfully referred to three or four cases a year of protective costs orders being made outside the environmental field. It is not a major problem. I have seen no evidence to suggest that the current exercise of the costs capping order power by the courts has caused any problems at all, other than the general problem that government departments would much prefer not to be the subject of judicial review applications at all.
Amendment 166 addresses a particular vice of Clause 74. Clause 74(3) provides that a costs capping order may be made,
“only if leave to apply for judicial review has been granted”,
but such a provision would defeat the very object of a costs capping order. If an applicant cannot seek and obtain a costs capping order in an appropriate case until leave to move for judicial review is granted, applicants will inevitably be deterred from bringing those judicial review proceedings in the public interest in the first place. They will be deterred because of the risk of having to pay an unquantified amount of costs at the permission hearing. I suggest to your Lordships that protective costs orders should remain available, if and only if the judge considers it appropriate in the circumstances of the individual case, prior to the grant of permission to move for judicial review. I beg to move.
Baroness Lister of Burtersett (Lab)
My Lords, I am sorry I missed the beginning of the noble Lord’s introduction of this amendment but I got called out. I simply want to speak on behalf of the Joint Committee on Human Rights. Our latest report says:
“We remain of the view expressed in our Report on judicial review that restricting the availability of costs-capping orders to cases in which permission has been granted would be a disincentive to meritorious public interest challenges being brought”—
that argument has been made—
“and we maintain our recommendation that the Bill be amended to remove this restriction”,
and that we explicitly support,
“Lord Pannick’s amendment … which would preserve the court’s current power to make a costs-capping order at any stage of judicial review proceedings, including before permission is granted”.
I hope that your Lordships’ House will feel able to support the amendment moved by the noble Lord, Lord Pannick.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I, too, support this amendment. By the same token that the House approved the earlier amendments, logically this amendment must be allowed as well. The vice of the proposed legislation is once again the narrowing of the courts’ discretion and the chilling of the judicial review. In this case, in the most important area of public interest litigation, it is really imperative that this amendment succeeds.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I am grateful once again to noble Lords for their contributions—brief but helpful. Your Lordships will understand that the amendments tabled by the noble Lord, Lord Pannick, seek significantly to undermine Clauses 74 and 75. I will begin by reminding the House what the clauses do. They build on case law, in particular the Corner House case, to establish a codified costs capping regime for judicial review proceedings with the aim of governing what we ordinarily refer to as protective costs orders.
The Government’s position, which I made clear throughout Committee, remains clear. We believe that costs protection should be available in appropriate cases but costs capping orders should not be made widely or, indeed, routinely. Alongside Clause 76, to which the noble Lord, Lord Pannick, referred, which excludes certain environmental cases from the new regime, these clauses ensure that costs protection is granted only in cases where there are serious issues of the highest public interest that would not be taken forward without an order. It is only in these cases that a public body defendant should have to pay its own costs regardless of whether it wins or loses.
As noble Lords have explained already, part of Amendment 166 would remove the effect of Clause 74(3), which provides that costs capping orders should be made only where permission to proceed to judicial review has been granted. I do not believe this is correct. It would mean that claimants with weak cases would benefit from costs protection even if the court subsequently decides that their case has no merit and that it should not be given permission for judicial review. This would leave the public body paying the costs of dealing with an ex hypothesi unmeritorious case.
As it stands, the clause does not mean that the costs of applying for permission will not be covered by the order. As is the situation now, if made, an order will be able to cover costs incurred prior to the grant of permission. This, I think, is the answer to what the noble Lord, Lord Pannick, described as a particular vice of these provisions. The claimant can, as now, ask the court to make the order as part as the permission application. But we feel that it is right that a claimant should bear the financial risk of bringing a weak claim.
Amendment 166 once again seeks to remove the requirement for the court to be provided with information on funding available, as well as what is likely to be available to a claimant, for use by the court when deciding whether to make a costs capping order, and for court rules to set out what that information should include.
As I have said, it is the Government’s position that a claimant should be required to provide information on how their case will be funded. Under the current regime, and as set out in the Corner House case, courts are required to consider the financial resources of those who request costs capping orders. This is the very essence of why we have costs capping orders, something that we should, of course, replicate in this new regime.
Furthermore, setting out what information is required in court rules will give clarity to applicants about exactly what they need to provide. We cannot prejudge what the rules will say; I am sure noble Lords will be aware that this is a matter for the Civil Procedure Rule Committee. During the course of debates, some doubt seemed to be cast on the independence of the Civil Procedure Rule Committee. With respect, I think that doubt was misplaced. It is a committee chaired by the Master of the Rolls and contains, among others, Lord Justice Richards, all of whom, I am sure, with their experience and independence, will provide rules entirely independent of what the Secretary of State might or might not want. Of course, we expect that the information requested will be proportionate.
I turn to Amendment 167, which seeks to remove the third requirement in subsection (6), which is that an order can be made only if, without an order, it would be reasonable for the claimant to discontinue the judicial review. Again, this was a requirement of the Corner House case, and it is right that this remains. Doing anything other than this would make no sense. It would mean that well resourced claimants, including large companies, would be eligible for a costs capping order provided they could show that, without one, they would discontinue the claim, even though it would be entirely unreasonable for them to do so. This simply cannot be right. Indeed, it would mean they could be granted a costs capping order despite not being eligible under Corner House and the current regime.
Amendments 168 and 173 of the noble Lord, Lord Pannick, seek to remove entirely from Clauses 74 and 75 powers afforded to the Lord Chancellor to amend lists of matters within these clauses through statutory instrument. It is the priority of the Government to respond at pace to any future developments. These amendments would simply prevent our doing just that. It may well be that, in future, developments mean that it is considered necessary to make changes to the matters set out in these lists. Of course, as I have said, Parliament will still be able to scrutinise any changes as both powers are subject, not to the negative, but to the affirmative resolution procedure.
Turning now to Clause 75, which sets out in subsection (1) five non-exhaustive factors that the court must consider when deciding whether to make a costs capping order and its terms, Amendment 170 seeks to make it optional for the court to have regard to these factors. With the exception of paragraph (e), these factors are based on the principles taken from the Corner House case, and all five factors are important in ensuring that a costs capping order is not awarded where it is unnecessary, as is the Government’s case.
The courts retain significant discretion, as the clause does not dictate how much weight, if any, should be given to each factor. Furthermore, the list is not exhaustive, so the court may consider any other factors that it considers relevant.
The other amendments proposed by the noble Lord, Lord Pannick, would amend that list, first, so that the courts would not be required to have regard to whether the applicant might receive funding in the future and, secondly, so that the courts would not have to consider whether someone who might provide future funding would benefit from the judicial review. They would be told to ignore factors which, I respectfully suggest, are relevant. This would mean that the court would not have available to it a full picture of the claimant’s financial position when deciding whether it was appropriate to grant costs protection and, if so, at what level that protection should be set.
It is vital that the courts are made aware of the full financial underpinnings of a claim. This allows the court to assess whether a claim, although notionally brought by a claimant of limited means, is sufficiently well resourced not to require taxpayers’ subsidy by way of costs protection. It also allows the courts to ensure that, if they do make a capping order, the cap is made at the right level. Otherwise, it could result in the taxpayer being asked to pick up the bill for the defendant’s costs when the claimant would in fact have been in a position to pay.
If—and this is an important point—future financial support is not forthcoming, the claimant will be able to inform the court so that it can take the change of circumstances into consideration. We will invite the Civil Procedure Rule Committee to include this safeguard, which may be necessary, in court rules.
On removing the requirement that the court consider the benefit to a potential third-party funder, the Corner House case recognised that a claimant’s private interest in a case is a relevant factor when considering whether to grant a costs capping order. This requirement reflects that principle and the court should consider it as part of the full picture.
The clauses retain the principle that costs are a matter for the judiciary, a theme which has run through our debates today. When considering an application for a costs capping order in an individual case, it will be for the judge to decide whether the particular proceedings are in the public interest, whether an order should be made and, if so, what the terms of that order should be. That represents no change to the current position.
The noble Lord, Lord Pannick, effectively posed the question, “What’s wrong with the current position?”, and he did not understand there to be many cases concerned. I have asked for further data on this. I have to confess to the House that the Government’s data on costs capping orders are limited, but we have indicative figures from the Treasury Solicitor’s Department which estimate that, between September 2010 and August 2014, it was involved in at least 38 cases where protective costs orders were awarded, of which 14 related to non-environmental cases. However, these figures will not represent all judicial reviews, as the Treasury Solicitor’s Department does not represent all government departments, nor will the figures cover non-governmental defendants such as local authorities, so that the actual number of such orders may be that much higher. The noble Lord, Lord Beecham, may be fed up with references to the Richard III case, but a protective costs order was made there and, as he will well know, the Government were unable to recover any money from the claimants because it was a shell company. It was created entirely to pursue the litigation, which turned out to be entirely baseless.
These are unusual orders. They should be made where the judge has as much information as he or she should have in order to be able to make them. Any other provision is simply saying, “The judge shouldn’t take into account matters which most people would think were relevant”. These clauses are to ensure that costs capping orders are made only in cases that genuinely need them—we are talking about public money here—and are set at a level that properly reflects the financial position of the claimant. With that perhaps rather overlong explanation, I ask noble Lords not to press their amendments and to agree to Clauses 74 and 75 standing part of the Bill.
Lord Pannick
I am grateful to the Minister for his detailed explanation, which, far from being overlong, was very helpful, because I see the force of what he says—except in relation to Amendment 166, which addresses the removal of a power in the courts to make a costs capping order at the outset of the proceedings. There is no question of a costs capping order being made routinely, which was the Minister’s concern. These orders are in the discretion of the court. The court will not make such an order unless it is satisfied that the claim is sufficiently well founded to justify such an order.
I do not think it is any answer for the Minister to say that if leave is granted, a costs capping order can then be made. The problem, as the Minister knows, is that if a costs capping order cannot be made at the outset then these public interest claims will be deterred. As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, pointed out, Amendment 166 has precisely the same purpose and effect as the three amendments already debated and voted on in your Lordships’ House this afternoon—that is, to retain judicial discretion, in this case as to when it is appropriate to make a costs capping order. In relation to Amendment 166, I wish to test the opinion of the House.
“Capping of costs: environmental cases
(1) This section applies to judicial review proceedings which constitute or concern an Aarhus Convention claim.
(2) Sections 71, 72 and 73 shall not apply to proceedings to which this section applies.
(3) Notwithstanding anything in sections 74 and 75, in proceedings to which this section applies the court shall make a costs capping order in favour of an applicant for judicial review of its own motion or upon the application of any party in any case where the court considers that if a costs capping order is not made the proceedings are unlikely to be fair, equitable, timely and not prohibitively expensive as required by the Aarhus Convention.
(4) Rules of court may prescribe the terms upon which a costs capping order may be made in accordance with subsection (3) provided that such terms are calculated to ensure that the proceedings will be fair, equitable, timely and not prohibitively expensive.
(5) In determining whether proceedings are likely to be fair, equitable, timely and not prohibitively expensive, the court shall have regard to any relevant reports of the Compliance Committee established pursuant to the Aarhus Convention.”
Lord Marks of Henley-on-Thames (LD)
My Lords, I moved amendments in these terms in Committee and so I will try to be brief, although the area they cover is quite complicated. Clause 76 is in the Bill because the Aarhus convention of 1998, which was ratified by this country in 2005, committed the United Kingdom to ensuring that environmental litigation will be,
“fair, equitable, timely and not prohibitively expensive”.
My amendments are founded on the principle that Parliament has a duty to ensure that this country acts in a way that is compliant with its international obligations.
Clause 76 recognises that the restrictions on costs capping orders as proposed in the Bill have the effect of making environmental litigation prohibitively expensive in any case. That is true ex hypothesi, because in a case where a judge would decide that a costs capping order is needed in order to enable an applicant to pursue the application, it follows that the application, if pursued without such an order, would be prohibitively expensive. It is for that reason that rules of court have already introduced rules limiting costs awards in Aarhus convention judicial review claims to relatively low fixed sums. Those sums are £5,000 against an individual applicant, £10,000 against a corporate applicant and £35,000 against a defendant.
However, the costs capping provisions are not the only provisions of the Bill that would put us in breach of the Aarhus convention: so would the provisions on disclosure of actual and likely financial resources and on the consequential orders for costs based on that information, as disclosed. Those provisions would have the effect that sources of support for judicial review applications would be choked off, making them prohibitively expensive for applicants without means, who would be left without the support of those people deterred from giving such support. The provisions on interveners and on costs capping would also have the effect of making environmental cases prohibitively expensive. Our amendments are therefore directed at broadening Clause 76 to exclude Clauses 71 and 72 on information about resources, and Clause 73 on interveners, for environmental cases as well as the costs capping provisions.
A further difficulty with Clause 76 is that it is permissive only and not mandatory, so that the Lord Chancellor is not required to make any regulations excluding the operation of the restrictions on costs capping. The provision is limited to ensuring that he is entitled to do so, if he chooses. Any such regulations that he chooses to make may also, under Clause 76(2), be as wide or as narrow as he chooses. Regrettably, this Lord Chancellor has given us little confidence that he is concerned to make challenges on judicial review less expensive.
Our amendments would also allow for costs capping orders in any case where the court considers that without such an order, the proceedings are unlikely to be,
“fair, equitable, timely and not prohibitively expensive”,
so as to bring the provisions squarely in line with our obligations under the convention. In our Amendment 174A, subsection (4) of the proposed new clause would introduce an objective test which would,
“prescribe … terms upon which a costs capping order may be made”,
to ensure compliance, once again by using the words of the convention. This is particularly important because the compliance committee established under the Aarhus convention has already found the United Kingdom to be non-compliant in a number of respects. The safe course is to ensure that the statute complies with the convention specifically and that there is a requirement that the regulations and rules of court do the same.
A further problem arises regarding definition. Clause 76(1) says that the definition of environmental cases is those cases which are environmental,
“in the Lord Chancellor’s opinion”.
Amendment 174B, which introduces a definition squarely based on the convention, is intended to address that difficulty and introduce an objective test. I beg to move.
Lord Faulks
My Lords, Clause 76 allows for judicial review claims on issues which relate entirely or partly to the environment to be excluded from the revised costs capping regime established by Clauses 74 and 75. This is to ensure continuing compliance with our obligations under the Aarhus convention and the various European directives which implement it. The requirements include that relevant procedures must not be prohibitively expensive. This is relevant to judicial reviews in certain environmental cases. Consequently, Clause 76 allows for environmental judicial reviews to be excluded from the approach in Clauses 74 and 75.
Lord Marks of Henley-on-Thames
My Lords, I am rather surprised that my noble friend regards my performance on this Bill as meriting promotion to “noble and learned Lord”.
We have both been brief. I rehearsed the arguments for the amendments in Committee and my noble friend rehearsed the arguments against. I will seek leave to withdraw the amendment but I say only this: I have a prediction that if these provisions are enacted in their present form, it will not be very long before the Compliance Committee established under the Aarhus convention draws attention to non-compliance by this country with its international obligations under Aarhus, not only in respect of Clauses 74 and 75 but in respect of Clauses 71 to 73 as well. I would regard that as a great pity because international obligations are a matter of great importance. With that observation, I beg leave to withdraw the amendment.
Lord Faulks
“Reporting restrictions: providers of information society servicesChildren and Young Persons Act 1933 (c. 12)1 After Schedule 1 to the Children and Young Persons Act 1933 insert—
Schedule 1AProhibition on publication of certain matters: providers of information society servicesDomestic service providers: extension of liability1 (1) This paragraph applies where a service provider is established in England and Wales (a “domestic service provider”).
(2) Section 39 applies to a domestic service provider who—
(a) includes matter in a publication in an EEA state other than the United Kingdom, and(b) does so in the course of providing information society services,as well as to a person who includes matter in a publication in England and Wales.(3) In the case of an offence under section 39, as it applies to a domestic service provider by virtue of sub-paragraph (2)—
(a) proceedings for the offence may be taken at any place in England and Wales, and (b) the offence may for all incidental purposes be treated as having been committed at any such place.(4) Nothing in this paragraph affects the operation of paragraphs 3 to 5.
Non-UK service providers: restriction on institution of proceedings2 (1) This paragraph applies where a service provider is established in an EEA state other than the United Kingdom (a “non-UK service provider”).
(2) Proceedings for an offence under section 39 may not be instituted against a non-UK service provider in respect of anything done in the course of the provision of information society services unless the derogation condition is satisfied.
(3) The derogation condition is satisfied where the institution of proceedings—
(a) is necessary for the purposes of the public interest objective,(b) relates to an information society service that prejudices that objective or presents a serious and grave risk of prejudice to that objective, and(c) is proportionate to that objective.(4) “The public interest objective” means the pursuit of public policy.
Exceptions for mere conduits3 (1) A service provider is not capable of being guilty of an offence under section 39 in respect of anything done in the course of providing so much of an information society service as consists in—
(a) the provision of access to a communication network, or(b) the transmission in a communication network of information provided by a recipient of the service,if the condition in sub-paragraph (2) is satisfied.(2) The condition is that the service provider does not—
(a) initiate the transmission,(b) select the recipient of the transmission, or(c) select or modify the information contained in the transmission.(3) For the purposes of sub-paragraph (1)—
(a) the provision of access to a communication network, and (b) the transmission of information in a communication network,includes the automatic, intermediate and transient storage of the information transmitted so far as the storage is solely for the purpose of carrying out the transmission in the network.(4) Sub-paragraph (3) does not apply if the information is stored for longer than is reasonably necessary for the transmission.
Exception for caching4 (1) This paragraph applies where an information society service consists in the transmission in a communication network of information provided by a recipient of the service.
(2) The service provider is not capable of being guilty of an offence under section 39 in respect of the automatic, intermediate and temporary storage of information so provided, if—
(a) the storage of the information is solely for the purpose of making more efficient the onward transmission of the information to other recipients of the service at their request, and(b) the condition in sub-paragraph (3) is satisfied.(3) The condition is that the service provider—
(a) does not modify the information,(b) complies with any conditions attached to having access to the information, and(c) where sub-paragraph (4) applies, expeditiously removes the information or disables access to it. (4) This sub-paragraph applies if the service provider obtains actual knowledge that—
(a) the information at the initial source of the transmission has been removed from the network,(b) access to it has been disabled, or(c) a court or administrative authority has ordered the removal from the network of, or the disablement of access to, the information.Exception for hosting5 (1) A service provider is not capable of being guilty of an offence under section 39 in respect of anything done in the course of providing so much of an information society service as consists in the storage of information provided by a recipient of the service if sub-paragraph (2) or (3) is satisfied.
(2) This sub-paragraph is satisfied if the service provider had no actual knowledge when the information was provided that it consisted of or included matter whose inclusion in a publication is prohibited by a direction under section 39.
(3) This sub-paragraph is satisfied if, on obtaining such knowledge, the service provider expeditiously removed the information or disabled access to it.
(4) Sub-paragraph (1) does not apply if the recipient of the service is acting under the authority or control of the service provider.
Interpretation6 (1) This paragraph applies for the purposes of this Schedule.
(2) “Publication” has the meaning given in section 39.
(3) “Information society services”—
(a) has the meaning given in Article 2(a) of the E-Commerce Directive (which refers to Article 1(2) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations), and(b) is summarised in recital 17 of the E-Commerce Directive as covering “any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service”, (4) “Recipient”, in relation to a service, means a person who, for professional ends or otherwise, uses an information society service, in particular for the purposes of seeking information or making it accessible.
(5) “Service provider” means a person providing an information society service.
(6) For the purpose of interpreting references in this Schedule to a service provider who is established in England and Wales or an EEA state—
(a) a service provider is established in England and Wales or in a particular EEA state, if the service provider—(i) effectively pursues an economic activity using a fixed establishment in England and Wales or that EEA state, for an indefinite period, and(ii) is a national of an EEA state or a company or firm mentioned in Article 54 of the Treaty on the Functioning of the European Union;(b) the presence or use in a particular place of equipment or other technical means of providing an information society service does not, of itself, constitute the establishment of a service provider;(c) where it cannot be determined from which of a number of establishments a given information society service is provided, that service is to be regarded as provided from the establishment at the centre of the service provider‘s activities relating to that service.”Youth Justice and Criminal Evidence Act 1999 (c. 23)2 After Schedule 2 to the Youth Justice and Criminal Evidence Act 1999 insert—
Schedule 2ARestriction of reporting of criminal proceedings for lifetime of witnesses and victims under 18: providers of information society servicesDomestic service providers: extension of liability1 (1) This paragraph applies where a service provider is established in England and Wales, Scotland or Northern Ireland (a “domestic service provider”).
(2) Section 49, so far as it relates to a publication falling within subsection (1A)(a) of that section, applies to a domestic service provider who—
(a) includes matter in a publication in an EEA state other than the United Kingdom, and(b) does so in the course of providing information society services,as well as to a person who includes matter in a publication in England and Wales, Scotland or Northern Ireland.(3) In the case of an offence under section 49, as it applies to a domestic service provider by virtue of sub-paragraph (2)—
(a) proceedings for the offence may be taken at any place in England and Wales, Scotland or Northern Ireland, and(b) the offence may for all incidental purposes be treated as having been committed at any such place.(4) Section 49, so far as it relates to a publication falling within subsection (1A)(b) of that section, applies to a domestic service provider established in England and Wales who—
(a) includes matter in a publication in an EEA state other than the United Kingdom, and(b) does so in the course of providing information society services,as well as to a person who includes matter in a publication in England and Wales.(5) In the case of an offence under section 49, as it applies to a domestic service provider established in England and Wales by virtue of sub-paragraph (4)—
(a) proceedings for the offence may be taken at any place in England and Wales, and(b) the offence may for all incidental purposes be treated as having been committed at any such place. (6) Nothing in this paragraph affects the operation of paragraphs 3 to 5.
Non-UK service providers: restriction on institution of proceedings2 (1) This paragraph applies where a service provider is established in an EEA state other than the United Kingdom (a “non-UK service provider”).
(2) Proceedings for an offence under section 49, so far as it relates to a publication that includes matter in contravention of a direction under section 45A(2), may not be instituted against a non-UK service provider in respect of anything done in the course of the provision of information society services unless the derogation condition is satisfied.
(3) The derogation condition is satisfied where the institution of proceedings—
(a) is necessary for the purposes of the public interest objective,(b) relates to an information society service that prejudices that objective or presents a serious and grave risk of prejudice to that objective, and(c) is proportionate to that objective.(4) “The public interest objective” means the pursuit of public policy.
Exceptions for mere conduits3 (1) A service provider is not capable of being guilty of an offence under section 49, so far as it relates to a publication that includes matter in contravention of a direction under section 45A(2), in respect of anything done in the course of providing so much of an information society service as consists in—
(a) the provision of access to a communication network, or(b) the transmission in a communication network of information provided by a recipient of the service,if the condition in sub-paragraph (2) is satisfied.(2) The condition is that the service provider does not—
(a) initiate the transmission,(b) select the recipient of the transmission, or(c) select or modify the information contained in the transmission.(3) For the purposes of sub-paragraph (1)—
(a) the provision of access to a communication network, and(b) the transmission of information in a communication network,includes the automatic, intermediate and transient storage of the information transmitted so far as the storage is solely for the purpose of carrying out the transmission in the network.(4) Sub-paragraph (3) does not apply if the information is stored for longer than is reasonably necessary for the transmission.
Exception for caching4 (1) This paragraph applies where an information society service consists in the transmission in a communication network of information provided by a recipient of the service.
(2) The service provider is not capable of being guilty of an offence under section 49, so far as it relates to a publication that includes matter in contravention of a direction under section 45A(2), in respect of the automatic, intermediate and temporary storage of information so provided, if—
(a) the storage of the information is solely for the purpose of making more efficient the onward transmission of the information to other recipients of the service at their request, and(b) the condition in sub-paragraph (3) is satisfied.(3) The condition is that the service provider—
(a) does not modify the information,(b) complies with any conditions attached to having access to the information, and(c) where sub-paragraph (4) applies, expeditiously removes the information or disables access to it.(4) This sub-paragraph applies if the service provider obtains actual knowledge that—
(a) the information at the initial source of the transmission has been removed from the network,(b) access to it has been disabled, or(c) a court or administrative authority has ordered the removal from the network of, or the disablement of access to, the information.Exception for hosting5 (1) A service provider is not capable of being guilty of an offence under section 49, so far as it relates to a publication that includes matter in contravention of a direction under section 45A(2), in respect of anything done in the course of providing so much of an information society service as consists in the storage of information provided by a recipient of the service if sub-paragraph (2) or (3) is satisfied.
(2) This sub-paragraph is satisfied if the service provider had no actual knowledge when the information was provided that it consisted of or included matter whose inclusion in a publication is prohibited by a direction under section 45A(2).
(3) This sub-paragraph is satisfied if, on obtaining such knowledge, the service provider expeditiously removed the information or disabled access to it.
(4) Sub-paragraph (1) does not apply if the recipient of the service is acting under the authority or control of the service provider.
Interpretation6 (1) This paragraph applies for the purposes of this Schedule.
(2) “Publication” has the meaning given in section 45A.
(3) “Information society services”—
(a) has the meaning given in Article 2(a) of the E-Commerce Directive (which refers to Article 1(2) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations), and(b) is summarised in recital 17 of the E-Commerce Directive as covering “any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service”,and “the E-Commerce Directive” means Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce).(4) “Recipient”, in relation to a service, means a person who, for professional ends or otherwise, uses an information society service, in particular for the purposes of seeking information or making it accessible.
(5) “Service provider” means a person providing an information society service.
(6) For the purpose of interpreting references in this Schedule to a service provider who is established in England and Wales, Scotland, Northern Ireland or an EEA state—
(a) a service provider is established in England and Wales, Scotland, Northern Ireland or in a particular EEA state, if the service provider—(i) effectively pursues an economic activity using a fixed establishment in England and Wales, Scotland, Northern Ireland or that EEA state, for an indefinite period, and(ii) is a national of an EEA state or a company or firm mentioned in Article 54 of the Treaty on the Functioning of the European Union;(b) the presence or use in a particular place of equipment or other technical means of providing an information society service does not, of itself, constitute the establishment of a service provider;(c) where it cannot be determined from which of a number of establishments a given information society service is provided, that service is to be regarded as provided from the establishment at the centre of the service provider‘s activities relating to that service.””
Lord Pannick
“Legal aid for judicial review
(1) The Lord Chancellor may not use the powers in section 2 or 9 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to impose further eligibility criteria for receipt of legal aid, or further to restrict the scope of legal aid, for judicial review proceedings (including applications for permission to apply for judicial review).
(2) Any statutory instrument made or to be made under the provisions referred to in subsection (1) and which otherwise conflicts with the restrictions set out in that subsection ceases to have effect in relation to legal aid for such proceedings.”
Lord Pannick
My Lords, Amendment 176 raises an issue of some constitutional importance. The proposed new clause would prevent the Lord Chancellor using the powers that he was granted under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or LASPO, to restrict eligibility for legal aid in judicial review proceedings. Your Lordships will recall that during the debates on LASPO Ministers repeatedly assured the House that the restrictions on legal aid contained in the LASPO legislation did not affect judicial review. Had the Bill made express provision restricting legal aid for judicial review, I think that Ministers would have found it difficult to secure the approval of the House for such provisions.
Instead of bringing forward proposals for restrictions on the availability of legal aid for judicial review by way of primary legislation so that such proposals could be fully scrutinised, the Lord Chancellor has limited legal aid in judicial review by subordinate legislation. Such subordinate legislation, as your Lordships well know, receives only limited scrutiny in this House. Detailed amendments cannot be tabled and debated, and the convention is that we very rarely indeed table, far less approve, a fatal Motion. To give one example of the problem, on 7 May your Lordships’ House debated a Motion of Regret that I had tabled in relation to the Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014.
Restrictions on legal aid for judicial review are far too important a matter for secondary legislation. If the Lord Chancellor wants to restrict the scope of legal aid in the context of judicial review, let him bring forward proposals in primary legislation. Those proposals can then be properly scrutinised and amended as appropriate. The purpose and effect of Amendment 176 is to secure that objective, and I commend it to the House.
Amendment 177 would introduce a further new clause to prevent the Lord Chancellor implementing a residence test for legal aid in judicial review proceedings. If I may, I will leave the noble Lord, Lord Beecham, to explain the purpose of that amendment, which I support. I beg to move.
Lord Beecham
Having been given that cue by the noble Lord, Lord Pannick, I cannot resist the temptation to rise now and speak to the amendments. Both of the amendments, as the noble Lord has said, relate to the issue of the availability or otherwise of legal aid in judicial review cases, and the noble Lord’s amendment deals with the broad problems implicit in the Secretary of State’s use of delegated powers to remove funding for applications for legal aid except where permission is granted or subject to an ex gratia scheme. In his characteristic way, the noble Lord has dealt comprehensively, not to say devastatingly, with that general issue.
Amendment 117 focuses exclusively on the Government’s attempt to deny legal aid for applications for judicial review by the imposition of a residence test. Noble Lords will be aware that an order under the provisions of LASPO to implement this approach was laid in the summer and was due to be debated under a Regret Motion in July, but that it was withdrawn in the light of the decision of the Divisional Court, with Sir Alan Moses—then Lord Justice Moses—presiding, which pronounced the provision unlawful.
The order would have imposed a prohibition on anyone over the age of 12 months—I repeat, 12 months—who had not been continuously resident in the UK for 12 months at some time from obtaining legal aid for judicial review cases. In its seventh report of 2013-14 the Joint Committee on Human Rights had criticised the Government’s proposals on a number of grounds, including their reliance on the possible availability of exceptional funding when, as we know, only 2% of applications for exceptional funding are successful. It took exception to the Government proceeding by way of secondary legislation, as the noble Lord has already mentioned, given the important human rights considerations urging that changes should be effected through primary legislation. Of course this Bill could have provided such a legislative vehicle if the Government had not chosen to use it in the way they have by tabling amendments on other, less fundamental, issues.
The Joint Committee was particularly exercised about the position of children, people with problems affecting their mental capacity and detainees seeking a remedy, for example, for abuse inflicted while in detention. It made the obvious point that the Government’s ostensible justification for denying legal aid to non-residents, on the grounds that they do not make a financial contribution to taxation, could not in any event apply to children. In its first report of the present Session, the committee joined the Children’s Commissioner in condemning the application of the residence test to children as a contravention of the UN Convention on the Rights of the Child. How long, one wonders, might it be before UKIP or the Tea Party tendency call for us to withdraw from the UN, on that sort of approach?
Some 30 highly reputable organisations have supplied a briefing which I commend to Members of your Lordships’ House, if you have not already seen it, setting out in clear terms 10 powerful objections to the proposed test. Interestingly, the first of those contained quotations from the noble Lord, Lord McNally, and the former Lord Chancellor, Ken Clarke, in debates on the then LASPO Bill. At that time the noble Lord, Lord McNally, affirmed that,
“the reforms establish an affordable system while ensuring that no one is denied … justice”.—[Official Report, 20/12/11; col. 1717.]
He went on to say that,
“there is no question as to what services might be funded; they are in the Bill for all to see”.—[Official Report, 5/3/12; col. 1569.]
Mr Clarke said that,
“we are continuing legal aid in all cases involving judicial review ... That applies to every kind of judicial review, because we do not think that the Government or a public body should be resisting a claim about abuse of their powers from a litigant who cannot get legal advice”.—[Official Report, Commons, 17/4/12; col. 227.]
Those remarks are of course entirely consistent with much of the debate that we have heard tonight and the amendments that have been carried already. They would, and should, apply to this proposal to restrict legal aid in cases involving a residence test, even to the extent of applying to children.
However, those assurances given at that time clearly carried no weight with the present Secretary of State; nor did the criticisms to which I have referred, although some of us are, if anything, astonished by their moderation, especially when set alongside the court judgment mentioned earlier and which is now under appeal. That judgment held that the residence test was both ultra vires, because it was not authorised by LASPO, and discriminatory, unlawful both at common law and under the Human Rights Act; but, significantly in the light of the threatened onslaught on the latter to garner votes from UKIP, that it was unlawful with or without the latter. Lord Justice Moses, as he then was, stated that,
“it is not possible to justify such discrimination in an area where all are equally subject to the law, resident or not, and equally entitled to its protection, resident or not … In the context of a discriminatory provision relating to legal assistance invoking public confidence”—
which, I note in passing, was an ostensible reason for the measure given by Ministers—
“amounts to little more than reliance on public prejudice”.
Sir Alan went on to identify a number of situations described in the large volume of evidence filed in the case which underlined the force of his concerns. Incidentally, it was a case of judicial review, which perhaps demonstrates the merits of that process. He then went on to refer to the extraordinary comments of the Lord Chancellor, who, during the case and pending judgment, went on record as saying,
“most right-minded people think it’s wrong that overseas nationals should ever have been able to use our legal aid fund anyway … And yes, you’ve guessed it. Another group of Left-wing lawyers has taken us to court”.
On this Sir Alan remarked that Mr Grayling was:
“Unrestrained by any courtesy to his opponents, or even by that customary caution to be expected while the court considers its judgment, and unmindful of the independent advocate's appreciation that it is usually more persuasive to attempt to kick the ball than your opponent”.
That is a perfect depiction, one might think, of the Lord Chancellor as the Luis Suarez of our justice system—which are my words, not Sir Alan’s. Sir Alan went on to quote a 40 year-old judgment of Lord Scarman:
“Every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection”.
It is shameful that while the Government are justifiably promoting the use of our courts and lawyers to wealthy foreigners and overseas corporations, they should seek to deny access to justice to those in dire need of it but without the means to procure it on the grounds that they have not been resident for 12 months. In a previous debate this afternoon I referred to the Minister who advised organisations like those who have supplied briefings for Members on these issues to “stick to their knitting”. I had hoped that Members of your Lordships’ House would not emulate those earlier knitters, the tricoteurs of the French Revolution, but would instead have sought to prevent the guillotine falling on some of the fundamental rights enshrined in and enforced by our system of justice. However, it is apparent that there would not be a majority to achieve that objective, given the late hour and the fact that most Members have now departed. In the circumstances, I will not be asking the House to divide on this issue, but I very much regret that the Government have set their face solidly against doing anything to retract an obnoxious and objectionable proposal which does them no credit whatever and, in fact, given his attitude, demeans the position of the Lord Chancellor.
Baroness Campbell of Surbiton (CB)
My Lords, I strongly support the two amendments in this group. My noble friend Lord Pannick has explained their crucial importance, as has the noble Lord, Lord Beecham. I wish to highlight only one point, which is why I am here at this hour—very usual for me.
It is crucial because if there is one element in the Government’s so-called “reforms” that causes me the most anguish, it is restrictions on legal aid. For many, many disadvantaged people, legal aid is the only way they can pursue their legitimate rights. When it is denied, justice is denied. This is particularly true of judicial review proceedings. I want us to leave here tonight contemplating the fact that, in the landmark decision this summer, the residence test was found unlawful. The court reviewed real-life examples of people who would be ineligible for legal aid in future. The one that struck me the most was the example cited of “P”, a severely learning-disabled adult who had been forced to live in a dog kennel outside the house, had been beaten regularly by his brother and mother, and starved over an extensive period of time. For me, this story encapsulates why we must support these amendments in some way. If we do not vote tonight, we must truly think about how we are going to address this situation. The Government’s residence test for legal aid has no basis in law and, I am afraid, will without doubt deny justice to those who need it most—perhaps the man in the dog kennel.
Lord Deben (Con)
My Lords, many cases have been put before us in these debates in which we have argued the facts. We have disagreed about whether particular measures will have this or that effect. This is not the same kind of discussion. I can see that we could have quite a lengthy discussion about the access to our courts of foreign nationals and the cost to the nation of that.
However, that is not what I want to argue here. I want to argue something that is more serious because it is not a matter of opinion but of behaviour. If a responsible Minister has made an undertaking about a law and that has been accepted by the House, if that undertaking is to be changed, it must be changed in front of the House in circumstances in which the House can make a decision. I am a bit tired of the constant statement by Ministers that there is the affirmative resolution procedure, as if that made any real difference. We all know perfectly well that the system that we have means that there is very little effective parliamentary control over legislation that is passed by those techniques.
If Parliament has been assured by a Secretary of State that a particular situation pertains, it is morally unacceptable that some other Secretary of State can reverse that without Parliament being able to argue the case. I say that as somebody who may not have gone all the way along with some of the arguments about access to justice for people wherever they come from and the rest. I certainly have some concerns—I think many Members of the House have concerns—about the way that our system has been used in the past. I certainly have a real concern about the exclusion of children; I agree with the noble Lord opposite on that. However, that is not the issue for the House today. That is why I am very sorry that we are debating it so late, at a point when the Opposition have decided that it is perfectly possible to send all their people home. Some people might ask why people thought that they would have an early night when matters of real importance—this amendment and the previous one—were being discussed. I think that many will ask that question.
The Government and the Minister need to stand up and explain to the House how it is possible, in a democratic society, for a Secretary of State to give an undertaking to the House as to what a Bill means and for that then to be changed without an opportunity for debate in the House. That is a really serious issue and not one of an ordinary kind. Although we will not vote on this, because one can see the nature of it, I hope that the Minister will take back to his colleagues that this is not a debate of the same kind that we have had up to now. It is a serious issue because people must trust the words of Ministers when they speak officially. I was a Minister for 16 years and I do not think that I can remember a moment when I would have reversed the public statement of a predecessor without giving an opportunity for that debate to take place publicly and clearly. On this occasion, the House has every reason to say that this is not good enough.
Lord Phillips of Sudbury (LD)
My Lords, in 1949, when the Legal Aid and Advice Act was brought in, the state of affairs in this country was radically different for the ordinary man and woman in the street from what it is now. I speak in terms of legal services and the availability of the same. In 1949, after the Legal Aid and Advice Act was passed and the scheme introduced, 95% of all law firms in the United Kingdom undertook legal aid. I can assure your Lordships that every single one of those firms would have done a great deal of pro bono work in the communities that they served. Indeed, not to have done so would have been a deathblow to their local reputation and workflow.
In the interim, everything has changed in that regard. Today, the number of firms doing substantial amounts of pro bono work and which are therefore available to the bemused citizen has, I am afraid, shrunk to a very small number. Indeed, the irony is that the bigger and richer the law firm, the less pro bono work it does. I speak as president of the Solicitors Pro Bono Group, or LawWorks as it is commonly known. In the mean time, the volume of legislation that we pass in this place has rocketed. Indeed, it is ironic that LASPO, the Act that underpins these amendments—I am speaking particularly to Amendment 176—is 302 pages long, is complex beyond measure and has rather more pagination than the entire statutes of 1906, which I had cause to look at the other day. Our output is something in the order of 13,000 to 15,000 pages of statute law a year, with only 2,000 or 3,000 pages of repeals. The problem for the ordinary citizen in terms of the law, access to the law and getting help and assistance when they desperately need it has never been remotely as great. Indeed, it is one factor in this strange mood that prevails in our country today—a mood of disillusionment and mistrust.
The amendment is absolutely essential. Make no mistake, judicial review is more and more important in the world that we inhabit, precisely because of the astonishing complexity and volume of the law with which we are surrounded and the need, therefore, to enable citizens and organisations to have access to the courts for judicial review when it is needed. One might think that JR cases are rocketing, but according to the report of the Joint Committee on Human Rights in April this year on the implications for access to justice of the Government’s proposals to reform judicial review, that is not the case. That may be surprising, but I suspect it has as much to do with the lack of pro bono availability —although there are some wonderful exceptions—and the legal aid position as is. The proposal in Amendment 176 to prevent a future Lord Chancellor from imposing further eligibility criteria or restricting the scope of legal aid without coming back to Parliament must be right. I hope that the Minister, for whom I have great respect, will see the importance of this.
Access to justice is surely the ultimate hallmark of a democratic society that is working. We as a Parliament do not walk our own talk unless, as well as passing these tidal waves of legislation, we make available to the citizen the means of accessing that legislation when needed. Otherwise, frankly, we are hypocrites and aiding and abetting a society in which money wealth is ever more dominant. Where justice is concerned, that must surely be wholly unacceptable.
Baroness Lister of Burtersett
My Lords, my noble friend Lord Beecham referred to the Joint Committee on Human Rights report on the residence test and legal aid for children. I want to return to a point I raised in Committee from the Joint Committee’s report, which referred to child protection cases. The committee said:
“We are confused as to why the Government excluded certain child protection cases from having to satisfy the residence test, but did not exclude from the test all legal remedies including judicial review. Whilst welcoming the funding of legal advice, we do not understand the justification that it is a good use of public money to give funding for advice that cannot be taken through to a judicial review”.
The Minister responded in Committee that,
“the Government’s position is that they do not believe that the JCHR should have concluded what they concluded in that respect. The committee appears to have proceeded on the basis that a child needs a lawyer in all cases to represent them and to ensure that their views are taken into account”.—[Official Report, 30/7/14; col. 1666.]
I am not sure that the committee actually said that. The committee acknowledged the Government’s argument that they would prefer that people do not have to make an application for judicial review. I am an adult and I would not want to go to judicial review without the help of a lawyer—lawyers do have their uses—and it is a bit unrealistic to expect a child to do so. However, the Minister carefully avoided the key point we were making, which is that,
“it is inevitable that judicial review will be a necessary remedy in certain cases. We are concerned that, if the residence test applies, there will no longer be the risk of a judicial review when a local authority fails a child in its care. This deterrent effect of a judicial review encourages local authorities to discharge their duties properly”.
We are therefore going back to the points made earlier about accountability and the deterrent effect. If a local authority knows that legal aid is not there, the chances of judicial review being brought are highly remote. The deterrent effect is, therefore, lost and the accountability of local authorities is diminished. That cannot be right.
Lord Faulks
My Lords, this has been a passionate debate. We heard from the noble Lord, Lord Pannick, in close co-operation with the noble Lord, Lord Beecham, who, to continue the football analogy, persisted with his tactic of man-marking the Lord Chancellor. The debate was also enhanced by the contribution of the noble Baroness, Lady Campbell. My noble friend Lord Deben made a number of criticisms of ministerial colleagues for announcements. I must, and will, deal with those. My noble friend Lord Phillips told us about bygone days, when the way legal practices functioned was very different. I have, through my relations, memories of rather a different approach to the law than that which pertains now. Legal aid was certainly commonplace in the provinces then and people were charged what solicitors thought they could afford. We live in a very different era now. The noble Baroness, Lady Lister, repeated her concern at the effect of the residence test on some children in some circumstances.
Amendment 180 would bring the new clauses into effect at the end of the period of two months beginning with the day on which the Act is passed. Amendment 176 seeks to prevent the Government making future changes restricting the availability of legal aid for judicial review through secondary legislation under LASPO. Specifically, the amendment would prevent future changes being made through the powers conferred under Sections 2 and 9 of LASPO. It is important to pause here as there is a danger of confusion. Section 2 deals with remuneration and Section 9 with scope, where these have the effect of imposing further eligibility criteria for legal aid in judicial review cases, or of restricting the scope of legal aid for judicial review. The amendment also seeks to annul any statutory instruments that have previously been made through the powers available under Sections 2 and 9 of LASPO, in so far as they restrict eligibility or scope in relation to judicial review.
As noble Lords will already be aware, remuneration arrangements for civil legal aid cases have recently been amended in regulations made under Section 2 of LASPO so that where an application for judicial review is issued, the legal aid provider will undertake work on the application at financial risk, unless permission is granted or a discretionary payment is made. This point was elegantly made by my noble and learned friend Lord Mackay of Clashfern. There is, of course, a difference between scope and remuneration in this context, and that is a partial answer to the point made by my noble friend Lord Deben. A theme correctly adopted by the Government, throughout the difficult period that has persisted since they came into power, is that limited legal aid resources should be properly targeted, particularly at judicial review cases where they are needed most. The legal aid system is there to command public confidence and credibility. It was in that context that we introduced amendments to the Civil Legal Aid (Remuneration) Regulations to limit the circumstances in which legal aid providers should receive payment for work carried out on an application for permission.
It may be helpful if I explain that our figures suggest that there are a significant number of unmeritorious cases—751 in 2012 and 2013 alone—which receive public funding but where permission is refused. Therefore, they have apparently satisfied the Legal Aid Agency that there is sufficient to justify legal aid. In fact, on the old test, they have failed to surmount the rather low hurdle of permission. This change was introduced to incentivise providers to consider more carefully whether to commence judicial review proceedings and hesitate before commencing claims that are unlikely to receive permission. In genuinely meritorious cases, the provider is still paid because the case is granted permission, the case concludes prior to permission and their costs are paid by the defendant, or, where the case concludes prior to permission and they cannot get costs, the provider can apply to the Legal Aid Agency for discretionary payment. Unfortunately, I do not think that my noble friend Lord Deben was able to be present when we had a lengthy debate on these issues, and the question of legal aid for judicial review and its limits in relation to remuneration and scope was debated.
Remuneration continues to be paid in the usual way for the earlier stages of a case to investigate the prospects and strength of a claim and to engage in pre-action correspondence aimed at avoiding proceedings under the pre-action protocol brought in by the noble and learned Lord, Lord Woolf, who is in his place, to discourage proceedings where the matter could be sorted out through an exchange of letters pursuant to the protocol.
I should stress that the regulations made under Section 2 of LASPO do not affect the availability of civil legal aid to individuals, the scope of civil legal aid for judicial review or the eligibility of applicants for legal aid in judicial review proceedings. Where a client is in receipt of legal aid, he or she will remain so for the life of the case unless it is withdrawn for other reasons. These changes relate only to the remuneration of legal aid providers. To put it more simply, it is the lawyer who loses out. The client does not lose legal aid.
As the amendment seeks to prevent the Government using Sections 2 or 9 of LASPO to impose further eligibility criteria for receipt of civil legal aid or to restrict the scope of legal aid, the amendment would therefore not achieve what appears to be the intended effect of, among other things, annulling the recent amendments I have referred to on remuneration. The amendment would however have the consequence of preventing the Government imposing additional eligibility criteria or restricting the scope of legal aid for judicial review, other than through primary legislation. It would also annul previous amendments debated and passed by Parliament in relation to the scope of legal aid for judicial review.
The form of legislation and level of parliamentary scrutiny to which provisions in relation to the remuneration of providers, and the eligibility for and scope of civil legal aid, are subject was considered only recently by Parliament during the passage of LASPO. We continue to believe that the level of parliamentary scrutiny is appropriate.
Perhaps I may remind the House about what happened during the passage of the LASPO Bill. Parliament was assured that the scope of judicial review would not be amended, which is entirely correct, but we do not accept that the proposals we are discussing are inconsistent with LASPO. In other words, the issue of bad faith, which is effectively alleged by my noble friend, simply does not arise. LASPO contains a very clear power to amend the scope of civil legal aid, as per Section 9, to which I referred earlier. There is no exception for judicial review.
Therefore, it is wrong to say that LASPO was enacted on the basis that the scope of legal aid would never be amended to create some sort of estoppel, as my noble friend seems to suggest.
Lord Deben
My noble friend will entirely solve my problem if he can say absolutely directly that nothing that the then Lord Chancellor said is in any way inconsistent with what we are now doing. In other words, what Kenneth Clarke said as Lord Chancellor, and what he promised, are entirely carried through and there is no contradiction whatever. In that case, I have no problems at all and will be happy to support him, but that is what we want to know.
Lord Faulks
I am sorry that my noble friend is not satisfied with the explanation that I have been rather laboriously making—which is that it all depends on the difference between scope and remuneration. The scope of legal aid has not been altered; we are simply talking about an amendment to remuneration at one stage of the process—a particular regulation which was considered in Committee. It was the subject of a debate on these matters. Admittedly there was opposition to it on the basis that this could stifle people from bringing judicial review, but it was not then suggested that there was some violent inconsistency between the LASPO Bill and what was said during its passage, and the change pursuant to Section 9. Now, however, it is being suggested that there is some bad faith on the part of the Government.
Lord Beecham
Did the Minister really say that the application of a residence test does not—
Lord Faulks
I am not talking about the residence test at all. I shall come to that shortly, but it is a different issue. Noble Lords are perfectly entitled to ask me questions about it at that stage. I am talking about the suggestion that—regardless of the residence test, which is a separate issue that I shall come to later —the provisions on legal aid for judicial review in some way breach an undertaking that was given to Parliament. That seems to be the burden of what is being suggested.
The power to make changes in the future should not be unnecessarily constrained as proposed. Any changes made to scope, under Section 9, and eligibility, under Section 11, are subject to the affirmative procedure, ensuring full parliamentary debate as appropriate. I am sorry that the affirmative procedure is not considered to be as satisfactory as primary legislation. Nevertheless, it remains a proper way to bring such matters before Parliament.
As I said in Committee, making such changes by primary legislation would be a cumbersome process and a disproportionate use of this House’s time. It would stop the Government of the day making necessary changes without primary legislation, even where change was necessary to ensure that the provisions remained up to date. The House may possibly remember—the noble Lord, Lord Pannick, may well remember—that during the passage of the previous Bill, certain noble Lords, of whom I was one, were anxious that the power should include both improving and increasing the scope of legal aid, if it was considered appropriate, and that became part of the LASPO Act.
Lord Phillips of Sudbury
I am sorry to interrupt my noble friend, but does he not accept that the procedure of dealing with changes via statutory instrument offers no protection whatever? There is no power to amend a statutory instrument; one can only reject it. I simply ask my noble friend: when did this House last reject a statutory instrument?
Lord Faulks
I am unable to answer that specifically. I am afraid that I do not know. I accept that there is a difference in the process, and I am sure that rejection is very rare indeed. However, that does not mean that a statutory instrument is not scrutinised. It is scrutinised, but there just happens to be a different method of scrutinising it—as my noble friend knows only too well.
Furthermore, there is no basis on which to distinguish judicial review from other, equally important, matters for which civil legal aid is available by necessitating primary legislation for such amendments. The approach envisaged by LASPO remains appropriate and effective, ensuring that any restrictions—indeed, any changes to eligibility or scope—whether technical or major, will get the scrutiny they require, but this should not necessitate primary legislation.
Finally, the amendment would have the serious effect of annulling any previous instruments made under Sections 2 or 9 of LASPO that restrict eligibility for, or scope of legal aid for, judicial review, including the provisions of an order debated and approved by Parliament in 2013 to ensure that the exclusions relating to judicial review agreed at the time of LASPO function as Parliament intended. Noble Lords will recall that the relevant amendment made under the 2013 order, which made it clear that legal aid for judicial review is governed by paragraph 19 of Part 1 of Schedule 1 to LASPO—and not any other provision—passed without opposition. The effect of the noble Lords’ amendment would be to annul the provisions for judicial review within the 2013 order, undermining the intention of Parliament.
Lord Pannick
I am very grateful to the Minister. As I mentioned in opening this short debate, Amendment 176 raises an issue of considerable constitutional importance. I am particularly grateful to the noble Lord, Lord Deben, for explaining so clearly and powerfully the nature and the importance of the constitutional issues.
As far as I am concerned, the constitutional issue is very plain: whether Ministers should be able to reduce legal aid for judicial review by the use of LASPO powers. Despite emphasising when the LASPO Bill was being debated that the scope of legal aid for judicial review was not being altered, the regulations certainly have reduced the scope of legal aid for judicial review. There is now no legal aid until leave to move is granted, other than in exceptional cases.
Lord Faulks
I am very grateful to the noble Lord for giving way, but does he accept that there is a distinction between the scope of legal aid and the remuneration of one stage of that scope? Legal aid can be available. Whether the lawyer is paid, in the case of an unsuccessful application for permission, does not remove the individual’s essential right to legal aid.
Lord Pannick
If you give an assurance that the scope of legal aid for judicial review is not being reduced or altered by LASPO, it seems that then introducing regulations which provide that there will be no remuneration for legal aid unless and until leave to move is granted and that there will be no remuneration for legal aid in residence regulations—although I appreciate they have been quashed—is indeed tantamount to reducing the scope of legal aid for judicial review. There is no point in saying that we are protecting legal aid as to scope for judicial review if you do not pay lawyers for providing the legal advice and assistance. That is what legal aid is about. So, with great respect, I do not accept the distinction between scope and remuneration. That simply will not wash, in my respectful submission.
Tonight I am not concerned with inviting the House to consider the merits or otherwise of the Government’s policies. We will all have our own view on the merits of the policy and whether legal aid is too wide or not wide enough. My concern is the constitutional one of whether it is appropriate to amend this important area of the law by secondary legislation in the light of the assurances we were given and when, I suggest, but for those assurances the Government would have had even more difficulty than in fact they had in getting the LASPO Bill through this House.
The Countess of Mar (CB)
I am sorry to remind the noble Lord, but this is Report and nobody should speak after the Minister except the person winding up.
Lord Pannick
I am very happy if the noble Lord wishes to clarify a matter. He does not; so be it. For my part, I remain troubled by this matter. I continue to think that it is important. I am not going to pursue it tonight but no doubt there will be other opportunities at some stage to do so. I beg leave to withdraw the amendment.
Lord Pannick
Lord Pannick
My Lords, your Lordships have heard today that Part 4 of the Bill contains a number of extraordinary provisions. Amendments 178 and 179, the final group of amendments for debate, provide an appropriate finale to our consideration of Part 4 because they address the quite extraordinary powers that are conferred on the Lord Chancellor by Clause 79.
If your Lordships take time to read Clause 79, you will see that the Lord Chancellor is given a power not merely to,
“make consequential … incidental, transitional, transitory or saving provision”,
to none of which I object. He is also given a power to make “supplementary” provisions by subordinate legislation. This power extends, so the Bill says, to amending, repealing or revoking legislation.
These are quite extraordinary powers, as the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Deben, explained to the House in Committee. I can see no justification whatever for conferring such powers on a Minister, far less in the sensitive context of judicial review, which, as your Lordships have heard this afternoon, is an essential element of the rule of law and the purpose of which—or at least one purpose of which—is to control the powers of Ministers. The Minister gave in Committee no explanation that I could understand as to why these extraordinary powers were required. I look forward to hearing his observations tonight. I beg to move.
Lord Deben
Happily, I am able to say now what I was going to say earlier, which is that I am one of those people who want to cut the amount of money that we have spent on legal aid. I take a very clear view that it is out of line with the arrangements in any other country that you might like to compare it with and that it is perfectly right for the Government to take those measures. However, that is why the Government should be a little concerned that people who are on their side have found unacceptable the mechanisms by which we have extended the powers of Ministers without due parliamentary control. This is the problem. Ministers should recognise that this is where the difficulty comes.
What we are saying is that the purpose is wholly acceptable but that to give Ministers powers of this kind is unacceptable and, as far as I can see, there is no good reason for doing it. That is the problem for the supporters of the Government and of their stance, which is why it would be helpful if the Lord Chancellor were to understand that we think that Parliament should have control in these very important areas, that we should not leave it to supplementary legislation even if it is of an affirmative kind and that—I am sure that my noble friend the Minister is entirely straightforward in his view about the connections between this and what was promised—when there is a fear that what has been promised has not been carried through, we should err on the side of being careful that Parliament should understand, accept and vote on those matters.
It is a matter not only of morality but of courtesy. I feel that we have not been given the kind of service which it is proper to ask of Ministers on this occasion. As one who supports these measures to a large extent, I am sorry that I shall be put in a position of not being able to support them simply by the mechanisms that have been presented. I suspect that quite a large number of my colleagues on this side of the House who have supported the Government would have been much happier in their support had the presentation been fundamentally different.
Lord Woolf (CB)
My Lords, I do not want to hark back to what I said earlier today, but when one comes to consider the powers given in Clause 79(1) and (2), it is important to bear in mind the special status of the matters which we have been dealing with in Part 4, to which I presume the final provisions in Part 5 are meant to relate. It is just a matter of discernment of the sensitivity of interfering with the basic means of the citizen to protect himself against excess of power by the Executive, among others. Where that is at stake, to give a power which allows supplementary provisions to be made by secondary legislation is wrong in principle. The Government, who I am sure are anxious to show that they are sensitive to the importance of judicial review and the independence of the judiciary—as they say so often—should feel uncomfortable with, at the same time, asking for a blank cheque with regard to the supplementary powers referred to in Clause 79(1) as well as those to amend, repeal or revoke legislation.
Lord Beecham
My Lords, it will come as no surprise to noble Lords that I support the amendment of the noble Lord, Lord Pannick, and the observations that both he and the noble and learned Lord, Lord Woolf, have made. It was interesting to reflect on the defence that the Minister made in Committee on these matters. He said:
“In particular, there is the sense, expressed by a number of noble Lords, that this particular Secretary of State and Lord Chancellor does not have sufficient regard for the rule of law and, essentially, there is a lack of confidence that he will exercise his powers in a way that Parliament would find satisfactory”.—[Official Report, 30/7/14; col. 1670.]
I think that summed up the position very well, not merely of your Lordships’ House but of the Joint Committee on Human Rights and many other bodies, not least the Divisional Court in the case about which we have heard and which is currently the subject on appeal.
The Minister, on that occasion, and in dealing with virtually the same amendment as that which we are now debating, described the situation created by the Bill—Clause 73—as “a pretty commonplace provision”. He said that,
“it is commonplace because noble Lords might like to know that Section 149 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 contains”,—[Official Report, 30/7/14; col. 1670.]
a similar provision, as does Section 53 of the Pensions Act 2014, and Section 20 of the Offender Rehabilitation Act 2014.
It is perhaps not surprising that that should be the case, given that it is precisely the same Government who have enacted all those measures. Whether there are antecedents under previous Governments, I do not know. Even if there were, the crucial point is that judicial review relates to the fundamental rights of the citizen. These other matters, important as they are—the noble Lord referred to other items of legislation last time—may well be significant, but there can be nothing more significant than the application of the rule of law and access to justice to test whether decisions have been made lawfully. That is an absolutely fundamental right. Even if there were precedents in respect of other legislation, that does not for a moment justify their extension to this very sensitive and important area.
The noble Lord, Lord Deben, has demolished any case for the robustness of the affirmative procedure as a process that allows effective scrutiny, and other noble Lords are, of course, aware of the limitations of the affirmative procedure. It is simply impermissible to frame legislation in such a way that the Secretary of State could act by secondary legislation without in any way defining what it might be, how far it might go, who might be affected and what it would do to the core principle we have debated for much of today about the right of the citizen to protection against unlawful decision-making by the Executive in any form—not merely the Government but other forms of executive agency. That strikes me as a very poor argument indeed.
The Minister is no doubt unable to depart from the stance that he has hitherto adopted. I, frankly, cannot believe that his heart is in it, whatever he will say at the Dispatch Box. It is a blot on the Government’s bona fides in this area to proceed with legislation in this form. Clearly, there is no way we can take it further tonight, but I hope that the Minister will report back to the Secretary of State and encourage him to redeem his reputation.
Lord Faulks
My Lords, the final speeches at this stage of our scrutiny of the Bill have very much echoed what was said in Committee. As I explained then, it is often necessary to give full effect to the provisions of an Act by making further provision in secondary legislation. Indeed, the noble Lord, Lord Pannick, acknowledged as much in his remarks in that debate. However, he and other noble Lords questioned, as they seek again to do in Amendment 178, the inclusion of a power to make supplementary provision.
Concern was expressed in Committee that the drafting would permit the power to be exercised to make provision about anything which the Lord Chancellor considered fell within the scope of the general area or subject matter of the Bill. This evening, the focus has been on judicial review. The noble and learned Lord, Lord Woolf, rightly stressed its importance and that of the independence of the judiciary. Of course I entirely accept that, and I hope that nothing I have said during the course of our debates has sought in any way to undermine those core principles of our system. However, Clause 79 refers to any provision of the Bill. As noble Lords will be aware, that is a final provision to deal with all the various provisions, which cover quite a wide field, it has to be said. Our debates have ranged over many areas of law and many provisions.
Lord Woolf
I am grateful to the Minister for giving way. Is he suggesting that Clause 79(1) would not as a matter of practice be applied in the case of Part 4?
Lord Faulks
No, I am simply saying that it is not exclusively directed at Part 4. It is to do with any provision in the Bill; it is a general provision for implementation. It would include it, but it would include anything else that came within the scope of Clause 79.
I explained in Committee the narrow construction given to such powers. The noble Lord, Lord Pannick, said that this was an extraordinary provision. The noble Lord, Lord Beecham, however, acknowledged that it found its way into other Acts of Parliament—apparently without demur from the Opposition, including the Coroners and Justice Act 2009, which, as the noble Lord will appreciate, was before this Government came to power. The suggestion that it is somehow the Conservatives or this Conservative-led coalition who have form for introducing such provisions is simply not correct. The Legal Aid, Sentencing and Punishment of Offenders Act and the Offender Rehabilitation Act contain powers to make supplementary as well as consequential and incidental provision. There are recent similar examples within the responsibility of other departments. Those cannot be levelled against the Lord Chancellor, who has been demonised in our debates. They include the Pensions Act, the Local Audit and Accountability Act and the Infrastructure Bill currently before Parliament.
Since Committee, we have considered carefully whether it would be sufficient to rely on that part of the power which is undisturbed by the amendment. Of course, the power is quite wide even without the supplementary provision. It is right to acknowledge, as I did in Committee, that there is a degree of overlap between the various concepts used and adjectives deployed. The fact that the existing powers agreed by Parliament included the power to make supplementary provision suggests that the overlap is not complete. For that reason, we think that the right course is not to amend the provision—with the reassurance as to the possible use of the power, which I mentioned. In other words, this will not be construed as giving any Minister the opportunity to make provisions which are not in the Bill—what he might have liked to have been in the Bill in retrospect—but construed very much in the way that such provisions are customarily construed.
Lord Beecham
In that event, is the noble Lord prepared to say that the supplementary power will not be applied to the judicial review provisions of the Bill?
Lord Faulks
I am not going to give any such undertaking from the Dispatch Box. It will be construed as a matter of statutory construction, and Parliament will view it if there is a change, but I am not going to limit any future Minister or future Parliament on what they want to do in any part of this legislation. This is a standard measure which the noble Lord’s colleague on the Labour Benches, the noble Lord, Lord Davies, though harshly critical of almost every provision in the Bill, said was absolutely standard in all legislation. He contrasted this with other provisions in the Bill which he found more offensive. He is unfortunately not in his place today to expand on his views.
Noble Lords have been concerned that such powers could be used unchecked. I accept, of course, that it can be difficult to determine whether a particular instrument falls within the power under which it is made, but that is the function of the Joint Committee on Statutory Instruments—which, as I am sure noble Lords will agree, is assiduous in reviewing secondary legislation, and, as part of its remit, specifically considers whether the power to make an instrument is wide enough to cover all that is in it.
I turn now to Amendment 179, which seeks to remove the power for any implementing provision to amend primary or secondary legislation in any way whatever, whether it falls within the category of “supplementary” or within any of the other categories mentioned in Clause 78. The noble and learned Lord, Lord Woolf, previously expressed some concerns about the meaning of this provision. In particular he asked why the drafting referred to both the repeal and revocation of legislation and why Clause 79(5) applied only to repeals but not revocations. I am happy to provide clarification on that score. Proper drafting practice is to refer to the repeal of primary legislation but to the revocation of secondary legislation. There is no practical difference between the two. Subsection (5) refers to repeals and not revocations because that provision is only about the enhanced parliamentary scrutiny for instruments which amend or repeal primary legislation, which I alluded to in Committee.
As I explained before, the removal of this provision from the legislation would be a serious constraint on the implementation of the Bill. It would, for example, prevent consequential amendments being made to primary legislation for provisions which have, despite the department’s best efforts, been missed. It may also impede the consequential amendment of existing secondary legislation, something which it is not normally appropriate to do in the Bill itself. Without such amendments it may not be possible to bring provisions of the Bill into force.
Amendments to existing legislation can of course only be made if they fall within the scope of the power. That means that they can only be made for the purpose of implementing what is already in the Bill. I would remind the House that any instrument which amended primary legislation would require approval both in your Lordships’ House and in the other place. I hope that the reassurance that I have already given about that will also go some way to alleviating concerns about the commonplace power in subsection(2), without which it may not be possible to properly give effect to parliamentary intentions.
I am sorry that my noble friend Lord Deben feels that there has been a lack of transparency in the way that the Government have approached this Bill, if that was what he was suggesting. I have endeavoured to assist the House in Committee and on Report. I am sorry that he, as a supporter, feels that we have not assisted him or the House sufficiently. It is a matter which I very much regret and I hope that it is not a view shared around the House by supporters of the Government. I hope that, with the further reassurance that I have given in this respect, the noble Lord will withdraw his amendment.
Lord Pannick
I am again grateful to the Minister. It is not much comfort that Clause 79 applies to a number of subjects, including judicial review, and that it is not the only subject of this odd clause. Nor is it much of an argument that provisions of this sort can be found in some other pieces of legislation. Perhaps we have not as a House adequately addressed the issues when those Bills came before us. That is no reason for not doing so now. Nor, if I may say so, am I much reassured by the Minister’s reliance on the comments of the noble Lord, Lord Davies of Stamford, in Committee. That is perhaps not the strongest point that the Minister has made during our debates tonight, although I recognise that the hour is late and some account can be taken of that. For my part, I still do not understand why the word supplementary is needed in this Bill.
Lord Faulks
Lord Faulks
“( ) Paragraphs 23 to 25 of Schedule (Mutual recognition of driving disqualification in UK and Republic of Ireland), and section (Mutual recognition of driving disqualification in UK and Republic of Ireland)(6)(b) so far as it relates to those paragraphs, come into force on the day on which this Act is passed.”
Lord Faulks
“(3A) Section (Reporting restrictions in proceedings other than criminal proceedings)(9) and paragraph 1 of Schedule (Reporting restrictions: providers of information society services) extend to England and Wales only.”
“( ) sections (Disclosing private sexual photographs or films with intent to cause distress) to (Meaning of “private” and “sexual”);”
“( ) Schedule (Disclosing private sexual photographs or films: providers of information society services);”
Lord Faulks