Criminal Justice and Courts Bill

Debate between Baroness Kennedy of Shaws and Baroness Campbell of Surbiton

Wednesday 30th July 2014 Lords Chamber

[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?