Criminal Justice and Courts Bill

Baroness Kennedy of Shaws Excerpts

Wednesday 30th July 2014 Lords Chamber

[The Chairman of Committees (Lord Sewel)]

I have to inform the Committee that if Amendment 74 is agreed, I cannot call Amendments 74A to 74L inclusive by reason of pre-emption.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I support the amendment. I notice that the Minister has invoked the senior judiciary in other aspects of the Bill. I remind the Committee that there is considerable judicial support for interventions—and not just in the Supreme Court. Judges have a very wide discretion in allowing such interventions. Only last October the noble and learned Baroness, Lady Hale—who is a Supreme Court judge, but she was speaking generally—spoke about how the more difficult a matter is on an important subject in the courts, the more help we need to try to get the right answer.

Interventions are enormously helpful. That is the view of the judges dealing with these kinds of cases. They have discretion as to whether to allow the intervention. Interventions come from organisations that do not have great resources. More often than not, the lawyers are in fact acting pro bono for NGOs and bodies such as Justice, of which I am chair of the council. The idea that this will now involve the real risk of incurring costs will have a very detrimental effect on something that is of enormous benefit in reaching a just resolution to many issues. I strongly support the amendment. I hope there will be second thoughts as to whether the change should be introduced.

[Baroness Campbell of Surbiton (CB)]

My Lords, I wish to speak in support of all the amendments in this group and, in particular, Amendment 74, in the name of my noble friend Lord Pannick, and to oppose the Question that Clause 67 stand part of the Bill.

There is a very strong presumption that interveners will be liable for the other party’s costs arising from an intervention, as well as their own, unless there are exceptional circumstances. This, as I understand it, is regardless of the outcome of the case and of whether the intervention helped, so potentially they could be liable for the legal costs of the party who loses the case. As a lay person, I do not see the justice in that. At present, the court decides who pays the costs and, for me, this works perfectly well.

This provision appears to the lay person to be designed for one purpose only—to deter interventions from organisations with limited resources. Unlike government departments, they could not contemplate such a risk. That applies to many charities; I spoke about this at Second Reading. Many of them have very small budgets and are run by volunteers, who are only too aware—perhaps they are overcautious—of their responsibility to avoid any financial risks.

Judges have consistently acknowledged the value of interventions in helping them to come to the right decision. It is in the public interest that they hear relevant evidence on important issues. If fewer interventions are made, they will lose vital sources of expertise, especially in relation to those most in need of protecting. The intervention of the Equality and Human Rights Commission in the case of R (B) v DPP in 2009 is a really good example of this. In this case the Crown Prosecution Service stopped a prosecution because the victim had a mental illness. This led to valuable new guidance on dealing with vulnerable witnesses and defendants in the criminal justice system.

During my time at the Disability Rights Commission —I was on the legal committee at that time—the DRC’s intervention in Burke, a case concerning the GMC’s guidance on the withdrawal of food, hydration and treatment, was, unusually, singled out for praise by Mr Justice Munby. He referred to,

“a particular and highly relevant informed expertise which none of the other parties could bring to the task in hand”'.

I have to declare an interest here as I was closely involved as part of the intervention body. This landmark case has had a profoundly positive effect on the patient/doctor relationship in this country when it comes to planning end-of-life treatment.

Interventions have a long and distinguished history and we cannot allow that to be weakened for the sake of the one or two examples of the bad apple. Where would we be today without the Leslie Burke case?

--- Later in debate ---

[Baroness Kennedy of The Shaws]

Can the Minister address the following concern? A distinction has been made between those who voluntarily intervene, in that they approach the court and indicate that they might be able to contribute something of special value, and those invited to participate. I chair the council of Justice, which, as this House knows, is an absolutely cross-party and no-party organisation—it is an independent organisation of lawyers, one of the organisations regularly described as acting as an intervener. It does so because of its commitment to the rule of law and the recognition that it is a lawyers’ organisation that has things to say about law which may be missed in the kind of judicial review where a particular issue is being raised that may have much more generalised concerns.

I am concerned that every so often Justice will identify an issue in an action that is not immediately obvious and will therefore draw the court’s attention to that fact; consent is then given to its intervening. I am, therefore, very worried about this distinction between the voluntary and the invited-in. Often it is the volunteer organisation saying, “We think there is an issue here that the court should hear”, which is of great value. I shall give an example of that. Noble Lords heard from organisations such as Justice and Liberty during the torture case. I know that it went all the way through but there are cases where there are legal issues, and when my noble and learned friend Lord Mackay—I refer to him as a friend because he is a dear friend—raises the issue of why we have seen some growth. It is because our world is more complicated and because we are dealing with issues such as international terrorism and more complicated issues in medicine that interventions from specialist organisations can be useful. Often, however, the courts do not know how they could be assisted until the voluntary suggestion is made that something of value is on offer.

[Baroness Lister of Burtersett]

My Lords, I asked a number of practical questions that had been put by Justice. I want to save the Minister from jumping up and down and I do not want to come between your Lordships and lunch, so perhaps he could write to all those who have taken part in the debate with the answers.

--- Later in debate ---

I urge that the use of legislation to interfere in the settled processes of the development of procedure is not something that we should encourage, and allowing it to happen in this way, particularly with the introduction of a Henry VIII clause, as has been emphasised by the noble Lord, Lord Davies, makes it clear why the legislation should not be adopted.

[Baroness Kennedy of The Shaws]

I too feel very concerned about this capping of costs. I see it as being part of a pattern of seeking to reduce the discretion of judges. Of course government Ministers do not say, “We don’t have confidence in the judiciary”, but that essentially is what this is about. It is about saying, “We have to use law to do this because the discretion of the court cannot be trusted to do what we seek to effect”. This amendment is about insulating the Government against challenge. All the clauses that we have been discussing today are essentially about seeking to limit judicial discretion, judges being the people who can weigh up carefully the merits in order to reach just decisions. That is being interfered with to protect the Government from challenge. That is what it ends up being about.

I too, therefore, support the amendment. The Government should think again about how this is perceived. The sitting judges cannot stand up and speak on their own behalf, as we know, so it falls on those who have been judges or who are active in the courts to alert the general public to what is happening. What we are doing is fettering the power of judges to do that which is right in a given case.

[Lord Beecham]

My Lords, it might be convenient to consider this group and the following group as one. The noble Lord, Lord Marks, has addressed his amendments in that group. I strongly support the amendments tabled by the noble Lords, Lord Pannick and Lord Marks, to which I have added my name, together with the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Carlile. I speak therefore briefly to the amendments in my name. Amendment 75 is particularly important in that it addresses the problems facing applicants for permission in the absence of legal aid for that stage. Amendment 75A provides that the court may make an order at any stage of the proceedings, in connection with Clause 68(3), and Amendment 75B would extend this potential protection to interveners whose position we have debated in a somewhat different context earlier today. Amendment 75E removes the reference to the court considering information of a financial nature if such is only “likely to be available”—a phrase that we have already debated —in respect of Clause 68(5).

Without the protection of the amendments in the group, not least from the Government’s proposals about a public interest test, which the Lord Chancellor conveniently empowered to define the terms of such a test, the protection offered to parties by this clause would be diluted to homeopathic proportions.

In the next group, Amendment 80B would apply to Clause 69(2) and provide that a costs capping order limiting or removing the liability of the applicant to pay another party’s costs where an order is not granted should “normally” rather than mandatorily limit or remove the other party’s liability to pay the applicant’s costs if that is the case. That introduces an element of reciprocity. Amendment 80C alternatively would allow discretion by substituting “may” for “must” in the subsection; again the issue of judicial discretion raises its head.

We have heard powerful speeches from non-lawyers—the noble Baroness, Lady Campbell, and my noble friends Lady Lister and Lord Davies—and, if I may say so, a magisterial rebuke to the Government from the noble and learned Lord, Lord Woolf; that was not for the purposes of delivering an admonition but to persuade them of the error of their ways, which I hope the noble Lord, Lord Faulks, will convey to the Lord Chancellor with some effect. These provisions thoroughly dilute what ought to be a sensible measure to protect claimants in this particularly important area of jurisdiction.