Civil Proceedings and Family Proceedings Fees (Amendment) Order 2015

Debate between Lord Faulks and Lord Pannick

Wednesday 4th March 2015 Lords Chamber

[Lord Faulks]

I am grateful to the noble and learned Lord. He is quite right: the recital refers to the fact that there is an exercise of the power conferred by Section 92(1) and (2) of the Courts Act and the consultation in accordance with Section 92(5) and (6). There is no explicit reference to Section 92(3). However, in purporting to exercise those powers, it would be said, although not specifically recited, that he was exercising them in accordance with the remainder of that section.

[Lord Pannick]

I am very grateful to all noble Lords who have spoken—and spoken passionately—in this debate. The Minister said that the order contains sensible and proportionate provisions. As your Lordships have heard tonight, these proposals are going to do inevitable and substantial damage to access to justice. It is simply perverse for the Government to dispute that many small businesses and many personal injury claimants are going to be unable to pay an up-front £10,000 fee as the price of access to the courts.

The noble Lord’s and the Government’s argument comes to this. Funds are needed to pay for the court system, but there is no point in having a civil court system if ordinary people are to be charged an entry fee which they cannot afford to bring basic claims for breach of contract and personal injuries. The Minister described litigation—I wrote this down, because it was a very striking phrase—as an “optional activity”, like a skiing holiday or a visit to a three-starred Michelin restaurant. As the Minister well knows from his experience as a very successful barrister, for many people—those suing for debts or to recover compensation for personal injury—litigation is often a necessity to keep your business alive or to maintain any quality of life. The Minister is absolutely right that there are already many impediments to access to justice. That is surely no justification—no excuse—for the state to erect further high barriers.

The fee remission provisions to which the Minister, perhaps somewhat desperately, referred are not going to assist other than in exceptional cases. Nor is it any answer that court fees can be recovered from the other side if the claim succeeds. Claimants need to find the fee up front.

The Minister referred to my earlier Motions of Regret with a reference to Frank Sinatra. To change the music somewhat, “Je ne regrette rien”. Happily, the courts have done more than regret. In a series of cases they have quashed Mr Grayling’s regulations which we have regretted in this House. My regret—my astonishment—that the Government should bring forward an order of this nature is mitigated only by my optimism that the courts will inevitably add this order to the long list of Mr Grayling’s regulations which have been declared unlawful in the past three years. With thanks to all noble Lords, I beg leave to withdraw the amendment.

Court Fees

Debate between Lord Faulks and Lord Pannick

Thursday 26th February 2015 Lords Chamber

[Lord Faulks]

No, I do not accept that characterisation of the Government’s policies in general or the enhanced court fees. The Government are committed to providing effective access to justice and a good and satisfactory court system which is paid for by litigants. The qualification to our enhanced court fees is that the 90% who are below £10,000 will not pay increased court fees, and we believe that the cost of the court system should be borne by those bringing larger claims.

[Lord Pannick (CB)]

My Lords, does the Minister recognise that the Lord Chancellor told the Global Law Summit that he is incredibly proud of our legal heritage? The next time the Minister sits down with the Lord Chancellor to discuss our legal heritage, will he point out that the best way to manifest that incredible pride would be to abandon regulations that will do incredible damage to access to justice because they will require traders and businesses who want to sue for £200,000 to pay an upfront fee of £10,000, which many of them will simply be unable to afford?

[Lord Faulks]

On the general point, there was reference in both questions to the Global Law Summit. Many pooh-poohed this enterprise, which noble Lords may now realise attracted more than 2,000 delegates, more than 100 Ministers of Justice and Attorneys-General and representatives of more than 100 countries, all of whom came to celebrate our heritage of the rule of law. I remain an adherent to that, as I am sure other noble Lords are. Nothing about the contents of that conference in any way derogated from that principle.

As to the more specific point, there are different provisions depending on the size of the claim. As the noble Lord will know, court fees usually form a small part of the overall bill compared with lawyers’ fees, which tend to be much higher. We do not believe that the increased court fees will act as a significant inhibition on claims.

Social Action, Responsibility and Heroism Bill

Debate between Lord Faulks and Lord Pannick

Monday 15th December 2014 Lords Chamber

[Lord Faulks]

I think I know what the most reverend Primate means. With respect, as I said on a previous occasion, describing a statute as sending a message is too simplistic a way of explaining what we do in Parliament. We do not legislate in a vacuum. For example, we identify particular issues, whether they are modern slavery or revenge porn, which became part of an amendment to the Criminal Justice and Courts Bill. We pass laws which serve the purpose of clarifying the law but they also reflect what people in society think we ought to be doing in Parliament. I rely on what my noble friend Lord Hodgson said about the desire for neighbours to be unshackled. We need more volunteers; we need people to be unshackled. This law may make a modest contribution and I ask the noble and learned Lord to withdraw his amendment.

[Lord Pannick]

Before the noble Lord sits down, perhaps I may ask him whether there is any precedent that he can cite for our legislating not to change the law but to provide reassurance.

[Lord Faulks]

I am not sure that off the top of my head I can think of a particular legislative provision that provides reassurance, but part of the function of much legislation is to provide reassurance and protection to the vulnerable. There is nothing novel about producing a piece of legislation which, in a difficult area, provides some clarity and a modest degree of reassurance in an area of considerable uncertainty.

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[Lord Faulks]

The answer is yes. There are lots of different circumstances in which two defendants may find themselves sued. They may be sued on the basis that one is much more likely to be liable than the other. The other defendant may be sued because his insurance arrangements may be considered more satisfactory. There will be circumstances in which one defendant is much more likely to be culpable than the other—in which case very often there will be, pursuant to the 1970 civil liability Act, a division of responsibility between those two defendants. A judge will have to perform that process.

By the same token, a particular defendant in a factual scenario, where an accident is caused, might have, on a particular day, been wholly reckless about the cause of the accident insofar as that particular defendant is concerned. Another defendant might have been predominantly or generally extremely careful for the welfare of that individual. I am not saying that that is necessarily a likely scenario, but it is certainly one within the realms of the many possibilities of claims that the noble and learned Lord and I have been involved in, where a judge has to pick his way through a number of different defendants and try to find a fair answer on the facts. My answer to him is that that particular process, difficult though it is, performed by skilful judges, will not be made significantly more difficult by these provisions.

As I explained earlier, the approach that we have taken does not rewrite the law in detail, but it represents a change to the law in that it does not currently oblige a court to consider whether a person took a generally responsible approach to safety during the activity in question. We wish to ensure that the courts take a slightly broader view of the defendants’ conduct in these circumstances, by looking at whether his approach to safety, taking into account all that he did or did not do, was generally a responsible one. I suggest that that would very much tally with what a number of members of the public might think was fair. If a defendant was really predominantly doing all that he or she could reasonably be expected to do to look after the safety of an individual, why should there not be some reflection of that fact in the determination of liability? Why should it be ignored altogether? The court would be obliged to weigh it in the balance—that is all—when considering the ultimate question of whether the defendant met the required standard of care.

[Lord Pannick]

Is there some time period over which the court is expected to assess the generally responsible approach of the defendant? How far does this go back? Has the department made any assessment of how much longer court cases are going to take and how much more expensive they will be if the judge has to assess all those matters?

[Lord Faulks]

With great respect to the noble Lord, considering the activity in question focuses the judge on the activity that is said to have caused the particular injury, or tort, which has eventuated.

Criminal Justice and Courts Bill

Debate between Lord Faulks and Lord Pannick

Tuesday 9th December 2014 Lords Chamber

[Lord Faulks]

It is a matter entirely for the House. The whole of the speech was before the House of Commons. It was clearly regrettable. The Lord Chancellor has written a letter which is deposited in both Houses. This House will take the view that it thinks appropriate.

[Lord Pannick]

My Lords, I am very grateful to the Minister. He has been put in a quite impossible position, not, I think, for the first time, and I sympathise with him.

There are two central points here. The Minister very fairly accepted that the Lord Chancellor inadvertently misled the House of Commons when it considered the amendment that was approved by your Lordships. The Lord Chancellor misled the other place on the very issue that is at the heart of this amendment. He wrongly suggested that there is an exceptional circumstances provision in this clause which confers discretion on the judge. That alone is reason enough for this House to invite the other place to think again, and to do so on the basis of an accurate statement by the responsible government Minister as to the terms and effect of the clause that he was putting before the House of Commons.

However, that is not all. The public interest amendment is essential to the rule of law. That a Lord Chancellor should regard the need for a fair procedure and legality as unimportant technicalities which should be excluded from judicial control is, to my mind, profoundly depressing and alarming. I say to the Minister that that is not a matter of rhetoric but of substance.

The noble and learned Lord, Lord Mackay of Clashfern, suggested that this clause is a development of the current law. However, the change is not merely to alter the test of inevitability to a test of highly likely; the vice of the clause that we are debating is that it imposes a duty on the court in all circumstances to throw out judicial reviews without retaining any discretion in the public interest. The Lord Chancellor and the other place should be invited to think again about the need to retain judicial discretion in the public interest, as Motion B1 states. I wish to test the opinion of the House.

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[Lord Pannick]

My Lords, the amendments that were approved on Report by your Lordships’ House by a majority of 33 arose out of two concerns about these clauses on financial information.

The first concern is that the judges would be prevented in all circumstances from granting permission to bring an application for judicial review unless the relevant financial information has been provided. As with Motion B1, on which your Lordships have just voted, so with this Motion C1 a degree of discretion is appropriate to permit the judge to decide that a case should be allowed to proceed in the public interest, even if some financial information has not been provided. An absolute bar is inappropriate in this context and the removal of all judicial discretion is inappropriate.

The second concern is about the effect of the provisions on people who contribute to the funding of a judicial review. The Minister’s helpful letter of 4 December to noble Lords explained that the Government wish to ensure that there is no “chilling effect” on contributions because of a fear by potential contributors that they will be ordered to pay the defendant’s costs. Therefore, as I understand him, the Minister has said that it is not the Government’s intention that those who provide small amounts of funds should be subject to costs rules, and that that will be ensured through rules of court.

As I understand it, the rules will state a threshold so that people contributing less than the specified amount would not need to be identified by the claimant and so would not be liable to be ordered to contribute to the defendant’s costs. That is all very laudable. The problem, however, is that the Minister has not told the House what the threshold level will be. If the level is too low, it will inevitably deter people from contributing to judicial reviews brought in the public interest because of the risk that the contributor will have to pay the defendant’s costs.

Funding judicial review has become much harder in recent years with the decline in legal aid. It is very regrettable that the Government should now wish also to impede the ability of claimants to fund judicial review applications by private contributions. I am not satisfied by what the Minister says unless he can assure the House that the threshold level will be sufficiently high that it will not deter modest or reasonable contributions to the funding of judicial reviews.

[Lord Faulks]

I am very grateful to the noble Lord for giving way. Perhaps he could assist the House by saying what he would consider a modest contribution.

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[Lord Faulks]

In answer to my noble friend’s first question, I did use the word “straightforward” and that is entirely correct; I adhere to that. On the second question, I am reluctant to give figures because, for the reasons I have given and in terms of what we are talking about, it relates to a small contribution to a fighting fund. That would not be £10,000 to £15,000. I do not think it is appropriate to go beyond that. That is a matter that I will leave to the rule committee: it will arrive at an appropriate figure in the light of its experience.

[Lord Pannick]

My Lords, this is a really puzzling matter. The Minister accepts that a threshold figure should be included in the rules below which a contributor to the funding of a judicial review should not be liable to be identified or pay costs. That is a vital concession, because without it, private funding of judicial reviews in the public interest would not be able to continue. However, the Minister is unable to say what the threshold figure will be; he is not able to state any criteria by reference to which that figure should be determined, and he is reluctant, in answer to the noble Lord, Lord Marks, to say more than that it will be a figure less —significantly less, as I understand him—than £10,000 to £15,000. That, I suggest to noble Lords, is quite unsatisfactory in relation to the Government’s attempt to persuade this House not to insist on its previous amendment.

The noble and learned Lord, Lord Mackay of Clashfern, said that the rule committee will deal with this in an independent manner. However, the rule committee will no doubt be heavily influenced by what the Government say is the purpose of this. I am not suggesting that the rule committee is bound by what the Government say, but the Government will have a very considerable influence, particularly when there are no criteria set out in the amendment. In any event, there is also—as emphasised by the noble and learned Lord, Lord Brown of Eaton-under-Heywood—a vital need in these clauses to retain a degree of judicial discretion in this sensitive context. The Government wish to impose absolute duties again and I, in this context, as in the previous context of Clause 64, suggest that judicial discretion should be retained. I wish to test the opinion of the House.

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[Lord Pannick]

My Lords, I shall be brief, given the time, given that your Lordships’ House has debated this issue on two substantive occasions already, and because I apprehend that your Lordships’ House will be anxious to move speedily to a vote on this matter.

Judges have repeatedly emphasised how helpful they find the contributions of interveners to be. Courts already have ample powers, which they exercise to control who can intervene on what subjects and with what costs consequences. The Government have at no stage in the debates on this Bill in either House identified any cases whatsoever in which the courts currently lack adequate power to deal with abuse or misuse of interventions. This clause, even with the amendments approved in the other place, will inevitably deter interventions which the courts will regard, and do regard, as valuable in determining the results of judicial review. I simply cannot understand what the Lord Chancellor hopes to achieve by this clause. I suggest that this House should ask the other place to think again. I beg to move.

[Lord Faulks]

My Lords, it has been a short debate. The issues have been fully covered at previous debates and at previous stages. I am not going to prolong this debate, but the noble Lord, Lord Pannick, says that the Government have not identified any issue. I made a rather more lengthy speech at an earlier stage in which I did identify—or at least attempt to identify—what the Government were driving at by this amendment. It was indeed based—I have to declare an interest—on personal experience of lengthy interventions, which no doubt a judge with all good intentions envisaged being very minor, which turned out to be extremely major in terms of their volume. These involve lengthy skeleton arguments, volumes of authorities and lawyers no doubt seeking to justify their existence. This is not helpful.

Of course, judges are capable—it is perfectly true—of expressing their disapproval, of limiting those interventions by appropriate methods. None the less, those who are involved will have inevitably had to spend time in preparing the case, in the eventuality that all of these interventions will in fact be treated with considerable scrutiny. Perhaps the case may be lengthened.

We consider this is an appropriate compromise. It does no more than identify the sort of cases that judges should be looking at, and probably are looking at, to make an order against interveners in appropriate circumstances. There are exceptional circumstances and judges will know when they are helped and when they are not helped, but to suggest that all is perfect in the world of interventions is simply to ignore the reality.

[Lord Pannick]

My Lords, it is not an acceptable compromise for the Government to bring forward a clause, with amendments, which will undoubtedly deter the interventions which the courts currently find helpful. There are interventions from all numbers of persons and bodies, many of which have made representations to your Lordships that this clause will deter them from coming forward and assisting the court. I have seen representations from bodies ranging from Liberty to Buglife. They are concerned that they cannot, for financial reasons, seek to assist the court if they fear that, other than in exceptional circumstances, they are going to be liable to pay the costs under this provision. For that reason I respectfully suggest to noble Lords that we should ask the other place to think again about this vital matter. I wish to test the opinion of the House.

Social Action, Responsibility and Heroism Bill

Debate between Lord Faulks and Lord Pannick

Tuesday 18th November 2014 Lords Chamber

[Lord Pannick]

My Lords, I hope that the Minister will be able to reassure the Committee that the amendment is unnecessary. Nothing in the Bill exempts an employer or other person from vicarious liability. I doubt that the Bill as drafted would have any effect on vicarious liability. That is because the scope of the Bill is confined by Clause 1 to claims that “a person” has been negligent or in breach of statutory duty. Clause 1 states that the Bill addresses the steps that the person was required to take to meet a standard of care.

Clauses 2 to 4 are concerned with that person acting for the benefit of society, acting responsibly or acting heroically. I understand that to be concerned with the alleged negligence of the primary defendant. I do not understand it to have any application to a person who has not themselves acted for the benefit of society, responsibly or heroically, but is said to be vicariously liable for someone who has so acted. I hope that the Minister can confirm that my understanding is correct.

[Lord Faulks]

My Lords, in short, I can confirm what the noble Lord, Lord Pannick, said. Amendment 1 would insert a new subsection at the end of Clause 1, stating that nothing in the Act provides an exemption from vicarious liability to an employer or other person. The Government do not believe that this is necessary. As I endeavoured to explain in my recent letter dealing with points raised by the noble Lord and other Members of the House at Second Reading, while the Bill requires the courts to consider certain factors before reaching a decision about liability, it does not tell the court what conclusion it should reach or prevent a person being found negligent if all the circumstances of the case warrant it. It will not therefore give anyone licence to take unnecessary risks with people’s safety or leave the injured party without a remedy when the defendant has failed to meet the applicable standard of care in all the circumstances of the case.

If the actions of an employer, for example, were risky or careless and they led to an injury, it would be open to the courts to conclude that the factors in the Bill did not outweigh other pertinent factors, such as the size and foreseeability of the risk, the adequacy of training and the extent of the injury, and, as a result, to reach a finding of negligence if appropriate. This will equally be the case where a claim is brought against the employer in respect of the allegedly negligent act or omissions of an employee under the law on vicarious liability. It is important to stress that the Bill is not intended to have any bearing on the rules governing the imposition of vicarious liability, which are well established in law. In the light of this, I can reassure the noble Lord that any suggestion that the Bill would leave injured Armed Forces personnel without a remedy in the civil courts, whether under the law on vicarious liability or otherwise, is misleading. There is nothing in the Bill to prevent a claim being brought against an employer by an injured employee, whether in the Armed Forces, the emergency services or more generally.

Of course, the liability of the Ministry of Defence has recently been the subject of a great deal of litigation, not least in the case of Smith v Ministry of Defence. The noble Lord and the Committee may be aware of the difficult arguments about the scope of so-called battlefield immunity and the relevance of the Human Rights Act. But all those issues, difficult though they are, are nothing to the point in relation to the conventional rules on vicarious liability. For the reasons that the noble Lord, Lord Pannick, gave in his analysis of the Bill, I can assure the noble Lord—I understand why there is anxiety and I wish to allay that anxiety—that there is no need for anxiety and vicarious liability is not intended to nor will be altered in any way by the provisions of the Bill.

In those circumstances, we respectfully suggest that the provision suggested by the noble Lord is unnecessary, and I hope that I have reassured him sufficiently to feel able to withdraw his amendment.

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[Lord Faulks]

My Lords, I am grateful for the debate and the contributions from the noble Lords, Lord Beecham and Lord Pannick, and the noble and learned Lord, Lord Brown. They seem to agree about the Bill, but not about the amendments. The noble Lord, Lord Beecham, is not enthusiastic about the Compensation Act. I think it is fair to say that he said that in fact he thought the previous Labour Government had nodded, as did Homer, when they brought it in. Therefore the words of the noble Baroness, Lady Ashton, relied upon by the noble Lord, Lord Pannick, would have less to commend them in his view. The noble Lord, Lord Pannick, on the other hand, says that the Compensation Act has been working well.

The view of the Government is that the Labour Party was quite right to identify the issue and to endeavour to reflect the problems that were identified by the committee which eventually decided to report. There followed the Compensation Bill, but it failed to go far enough. A number of other steps have followed, the common law has of course developed as I entirely accept, and here we have a Bill that endeavours to deal with what I have frankly said is a very difficult target to hit. I know that noble Lords feel that it is a target that can be hit by the common law without any statutory intervention.

However, the amendments put forward here come into different categories. I accept that there are similarities between Section 1 of the Compensation Act and Clause 2 of this Bill. The 2006 Act provides that the court may, when determining whether a defendant has taken reasonable care, consider whether a finding of negligence could prevent a desirable activity from being undertaken or discourage others from undertaking functions in connection with such an activity. It does not require the court to enter into such consideration.

However, Clause 2 of SARAH takes a different and firmer approach than the Compensation Act by requiring the courts to consider in every case whether a person was acting for the benefit of society or any of its members. It focuses more firmly on the actions of the defendant in a particular case than on the effect that a finding of negligence might have on others participating in similar activities. For these reasons we consider that Clause 2 of our Bill will provide greater reassurance than the 2006 Act has done to those in the voluntary sector and elsewhere who are still deterred from getting involved in socially valuable activities by worries about liability. I do not suppose that they will have Halsbury’s Laws of England to hand when making these difficult decisions, but their general approach will be affected by the climate and the context in which we live and the way the law reflects that.

The noble Lord says that if we want to compel the courts to consider the type of factors set out in Clauses 2 to 4 of the current Bill, we could have achieved that simply by requiring the courts to consider the points in Section 1 of the Compensation Act. His Amendment 2 would therefore replace the word “may” in that Act with the word “must”. I am not convinced that changing one word in the Compensation Act would have the same impact as our standalone Bill, which has been deliberately designed to be comprehensible to non-lawyers. Indeed, the National Council for Voluntary Organisations mentioned in oral evidence that if the Bill is passed, it could help to publicise that via its volunteering network. As I have said, Clause 2 has a different and clearer focus than Section 1 of the 2006 Act, and I believe that it better addresses the genuine concerns of volunteers and others.

I turn now to Amendments 3, 5 and 9 tabled by the noble Lords, Lord Beecham and Lord Kennedy of Southwark. They would remove the requirement for the courts to consider the factors in the Bill in any case in which they were determined, whether someone was negligent or in breach of a relevant statutory duty. Instead, it would be purely a matter of discretion as to whether they took account of the factors in the Bill. This would revert to the terminology of the Compensation Act, which, as I have said, provides that the courts “may” consider whether a finding of negligence might prevent a desirable activity from being undertaken or discourage people from undertaking functions in connection with such an activity.

In our view, that could unacceptably weaken the Bill. The main point of the Bill is to provide people who are deterred from getting involved with greater reassurance that the courts will always look at the context of their actions before reaching a conclusion on liability. It is our view that the Compensation Act has not done enough to address people’s worries about liability, as recent polls carried out by the National Council for Voluntary Organisations, St John Ambulance and the British Heart Foundation have demonstrated. We are hopeful that the Bill will do more than the Compensation Act did to increase public confidence in the law and increase participation in socially valuable activities. We fear that reverting to the terminology used in the 2006 Act, which as I have indicated the noble Lord, Lord Beecham, has reservations about, would not be helpful in this regard. In many cases it may not make much difference whether the word is “must” or “may”, and all will depend on the particular facts of the case.

I accept the strictures about transposing arguments from one Bill to another made by the noble and learned Lord, Lord Brown. Enthusiasm probably overtook me in making that analogy, having recently suffered several defeats on the part of the Government in that context. My point, however, remains that there is a difference between the words “must” and “may”, but that difference will depend very much on the context. Judges are well used to having to fight their way through the undergrowth of statutory terminology; sometimes they must do something and sometimes they may do it. They will of course be approaching these cases very much on the facts. We think that in this difficult area the Bill does its best to fulfil the social objective that lies behind it and, with great respect, we do not think that it would be improved by any of these amendments. It is in those circumstances that I ask the noble Lord to withdraw the amendment.

[Lord Pannick]

I am very grateful to the Minister. He said that it is a difficult target to hit, but I suggest that the problem is that you are certainly going to find it difficult to hit a target that does not actually exist. You will find it particularly hard to hit a target if you are not armed with any weapon that is capable of hitting it, even if it did exist.

The Minister’s other point was that the aim here is to produce legislation which is comprehensible to non-lawyers, but it also has to be implemented by the courts. If it is not in a coherent form that sits easily with other legislation, all the Government are going to do is cause confusion which will promote litigation at great expense to non-lawyers. The Minister simply did not address the main concern behind Amendment 2, which is that if the Bill is enacted in its current form, there will be two statutes addressing the same general issue in different language. Before we come back, I ask the Minister and the Bill team to give some thought to whether it is sensible not to address Section 1 of the 2006 Act at all by amending or repealing it in this legislation. For the moment, I beg leave to withdraw the amendment.

Criminal Justice and Courts Bill

Debate between Lord Faulks and Lord Pannick

Monday 27th October 2014 Lords Chamber

[Lord Faulks]

My Lords, Clauses 71 and 72 are about transparency. They require an applicant for judicial review to provide, with their application, information on funding for their case and that the court considers this information when exercising discretion to order costs. It is important to emphasise that, while permission will not be granted until information has been provided, there is no question of preventing permission if the applicant’s funding is insufficient, and the judiciary continue to have complete discretion in relation to the making of costs orders against third parties disclosed in that information.

Requiring the applicant to provide this information to the court will give the court the information necessary to achieve flexibility in apportioning costs fairly, and to prevent a third party from using a front man or shell company to shield themselves from incurring their share of costs. Your Lordships have heard that there is a potential problem, and although it is not always easy to know what the situation is, this provision should enable the courts to make their decision based on evidence. We say that the judges do not always have all the relevant information available or presented to them, which has the potential to hinder their ability to order costs in a just and equitable manner.

Amendments 157 and 158 would stop the provision of information about financial resources being mandatory, allowing for permission to be granted where no information has been provided but permission is “nevertheless appropriate”—which is undefined. The Government consider this unnecessary, as the clause does not stop permission being granted if insufficient finances are available. It requires only that the court should be provided with an accurate picture. The court still has discretion.

The clauses will not require onerous or invasive information from applicants, and the information requested should always be information that the applicant would have, even if they did not have funding at that stage. The clauses are designed to promote transparency in court proceedings, not to provide for a time-consuming forensic examination of an individual’s financial affairs.

The noble Lord, Lord Beecham, has not moved Amendment 156. The amendments tabled by the noble Lord, Lord Marks, and Amendment 162, tabled by the noble Lord, Lord Pannick, seek to change when the court should have regard to funding information, and what that information should be. My understanding is that they rely on Clause 71 being removed from the Bill and set out the power for the court to require the applicant to provide certain information about funding when the court is determining, or intends to determine, costs. They also limit the information to sources of funding that are actually available to the applicant, rather than sources that are likely to be available, and rather than looking at the applicant’s ability to fund the judicial review generally, the information would be limited to how the applicant would meet the other side’s costs.

Amendment 161A would mean that those who are likely to fund and drive litigation could escape the appropriate costs liability simply by not promising to provide the support. Amendments 160 and 161 seek to instate a position where the court need not consider financial information provided by the applicant, even if it considers it appropriate. In my view, these amendments are unnecessary and defeat the point of Clause 71 in making sure that the court has clear and transparent information early in proceedings.

The key to Clauses 71 and 72 is they do not create new cost liabilities for claimants, nor does the sufficiency of funding they demonstrate have an impact on the progression of the case. In answer to the noble Baroness, Lady Lister, the courts would not be expected to make an award against a third party who was simply funding the litigation and not seeking substantially to control, influence or benefit from it. I said words to that effect in Committee; I say them again now, and I hope those words will be useful when anyone comes to interpret this provision should it become law. It is clear that the applicable case law requires more than only funding; as in the case law referred to by my noble friend Lord Lester, the person must be seeking to drive the litigation or to benefit from a potential remedy in the case. I should emphasise that.

Under those principles, costs awards are not prescriptive, nor is it our intention that they should be. We are simply allowing the court to make decisions with the appropriate information available to it. For example, the court will not have to make an award against a parent in a school challenge case and would not be expected to do so. We do not agree with Amendment 162 that prospective funding or the ability of company members to provide financial support can be excluded from this consideration, nor do we agree that the court should consider only those who have promised to provide funding. In our view, that creates an easily avoidable threshold.

We also do not agree that this information should be provided only on the making of an order by the court, as stated in Amendment 159B. There is no reason why the court should not be informed of the parties driving litigation early on in proceedings, as this would enable the judge to make decisions on costs without having to order the parties to provide information. Essentially this amendment seeks to favour the opaque, rather than the transparent. What information an applicant should provide will be set out in court rules. The rules will not require invasive financial information but will require the claimant to be clear about the sources of their funding. It will be perfectly acceptable to update the court if funding does not materialise; that was a point made in Committee and I would like to make that clear. The requirements will not be burdensome for claimants. The Government have on many occasions stated that they wish to see a light-touch approach, and I am sure that any rules will be fair and proportionate to the court’s need for transparency.

The noble and learned Lord, Lord Brown, made reference to the judiciary’s response. I am sure he has read carefully what it is and I am in no position to contradict it. My understanding was that the judiciary had welcomed transparency, although, having revisited what I said in Committee, I did not seek to rely specifically on that as the only basis for this argument. He may well be right that the comments were directed more at non-parties than in the situation of an applicant. If I inadvertently misled Parliament, I make it absolutely clear that that was not my intention.

The requirement for transparency is wholly understandable and wholly consistent with judges making decisions on the best possible information. The question is: is this going to be chilling? I suggest that it will not be chilling to those who have good reasons for bringing claims and who are, as one would expect, open and frank about what, in financial terms, is driving the challenge.

This has been a useful debate and I hope it has enabled me to be clear about what lies behind Clauses 71 and 72 and to allay any remaining concerns. The Government take the view that these clauses do not take away the judge’s discretion. As is always the case, he or she will make the decision on the basis of the facts of each case. These clauses enable the judge to have better information before exercising the discretion. No judge wants to exercise a discretion in the absence of all the information that could reasonably be made available to them. It is not obvious to me why this is as objectionable as it is said. With that reassurance, I hope that the noble Lord will be prepared to withdraw his amendment.

[Lord Pannick]

My Lords, the purpose of Amendments 157, 158, 160 and 161, which are all of a piece, is simply to ensure that the court has a discretion rather than a duty in relation to information about the funding of judicial review. It is very important to be clear in the Bill that the court retains a discretion in relation to these matters. That is what these amendments seek to do in relation to funding issues. I wish to test the opinion of the House on Amendment 157.

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[Lord Faulks]

I think that I have answered my noble friend’s point on the difference between the Supreme Court and the courts at a lower level. On costs, as I said, with this clause we hope to deter inappropriate interventions and also to make interveners think about the scale of their intervention so as to reduce the costs for all parties, whether applicants or respondents, and to ensure that those interventions are relevant and genuinely assist the court.

These clauses apply to judicial review in England and Wales. Scotland and Northern Ireland have separate legal jurisdiction on this question because it is devolved, but of course if they intervene in a court in England and Wales that would be a different matter.

Interveners can also, as I think is accepted, make arguments that go beyond what is necessary. The changes that Clause 73 introduces reflect the Government’s intention of ensuring that they do so in an appropriate manner. We submit that the overall effect of the clause, while not drastic, will reduce the number of cases—and the noble Lord, Lord Pannick, says that there are very many cases where interventions take place—in which the taxpayer is expected to shoulder the burden.

That is what Clause 73 does and why the Government, having considered the issues, are of the view that the provision represents a sensible, workable and balanced position that takes proper account of the role of the judiciary, which will remain at the centre of this issue. Therefore, having provided an explanation of the Government’s thinking, I ask the noble Lord to withdraw the amendment, and I commend Clause 73 to the House.

[Lord Pannick]

I am grateful to the Minister and to all noble Lords who have spoken. This short debate has, I think, illuminated and emphasised just how bizarre Clause 73 is, because there is no dispute that interventions by third parties at all levels of judicial review assist the court by the provision of information. That is simply not in dispute.

There is also no dispute that interventions by third parties are already under the control of the court. They are under the control of the court as to whether they are allowed, on what grounds, and with what consequences on costs, having regard to the issues in the case. It is true, as the Minister says, that there have been more interventions in recent years, but that is only because courts find them helpful and have allowed third parties to intervene. If interveners act inappropriately —and I am not aware of any cases where this has occurred, with the exception of one possible case in the Appellate Committee, which, as it is now the Supreme Court, would not be covered by this provision in any event—the judge has ample power, at present, to order the payment of costs. That point was correctly made by the noble Lord, Lord Deben, who also rightly referred to the limited scope of the exceptional circumstances provision. The problem is that there is nothing exceptional about interveners assisting the court. That is what they normally do.

When an expert body is deciding whether to intervene and assist the court, it will know, if Clause 73 is enacted in its present form, that there is a strong presumption that it must pay the costs. The inevitable consequence is that it is unlikely to intervene. This will not achieve the Minister’s policy aim of, as he said, deterring inappropriate interventions; it will deter interventions, however helpful they may be to the court.

Clause 73 makes no sense whatever. It makes no sense, with great respect, to speak of a need to make interveners have a financial stake in the proceedings. The court has ample power to penalise them in costs. Amendment 164 will maintain judicial discretion in Clause 73, just as your Lordships have decided that judicial discretion should remain in Clauses 70, 71 and 72. I wish to test the opinion of the House.

Criminal Justice and Courts Bill

Debate between Lord Faulks and Lord Pannick

Monday 27th October 2014 Lords Chamber

[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.

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[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.

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[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.

Criminal Justice and Courts Bill

Debate between Lord Faulks and Lord Pannick

Wednesday 30th July 2014 Lords Chamber

[Lord Faulks]

I was coming to that very point. Interventions can prove difficult for the courts to control. The reason I say that is because on occasions an application is made for an intervener to intervene and, on the face of it, the judge deciding whether or not they can intervene will do so on the basis that they have a knowledge of the case. The judge, having regard to the submissions that he or she receives, considers that the intervener might well be of assistance. The level and degree of intervention is then very often beyond the control of the judge who originally gave permission, so that one can then encounter—perhaps at the hearing of a judicial review, or at the Court of Appeal stage—a very substantial skeleton argument, bundles of authorities, and arguments which range very loosely around the subject matter of the dispute. Here I speak from experience.

Inevitably, this causes expense to all parties involved, whether the applicant or the respondent, because they have to consider the arguments. They cannot rest assured that the judge is simply going to ignore everything on the basis that it might be outside the scope of the intervention. Of course, good judges customarily curtail submissions made orally once the matter gets to the stage of a hearing, and do so effectively. That does not remove the danger of quite excessive levels of intervention and contribution.

[Lord Pannick]

The Minister will accept, I hope, that courts regularly impose terms on interveners. The court says, “You may intervene, but only on the following issues”, “You may intervene in writing, but only 20 pages” or “You may intervene orally, but no more than 30 minutes of oral submissions”. These are very familiar orders. What further powers do the courts need?

[Lord Faulks]

Those are familiar orders. They are not always adhered to or always made, but I entirely accept that they are familiar orders. The point that I am making is that they are difficult to police in a preparation for a trial although easier to police by conscientious judges when dealing with it.

The changes that Clause 67 introduces reflect the Government’s intention of ensuring that interveners have a more proportionate interest in the financial implications of a judicial review. There should be fewer cases in which the taxpayer—or any other party to a judicial review—is expected to shoulder the burden of others’ decisions to argue their case.

Therefore, as currently drafted, Clause 67 establishes two presumptions: first, that the court will order a voluntary intervener in judicial review proceedings to pay their own costs; and secondly, that it will order a voluntary intervener to pay the reasonable costs they cause a party to the judicial review to incur by their intervention. Neither would apply where, in the view of the court, there are exceptional circumstances making it appropriate for the presumption to be rebutted.

The noble and learned Lord, Lord Woolf, asked me about Clause 67(6) in relation to that, on the exceptional circumstances that are relevant for the purposes of subsection (3) and the criteria that will be specified in the rules of court. My answer to that is the same answer as I gave in the debate on Monday when responding to an amendment put forward by the noble Lord, Lord Beecham, about the rules of court. The Delegated Powers Committee suggested that these and other matters should be put in the Bill. We are considering carefully that report and will respond to it. Clearly, what has been said about it is an important factor which we will take into account.

I should, however, be absolutely clear that the clause will apply only to those who voluntarily seek permission, not in those cases where the court invites, as it sometimes does, an intervention because it requires contextual information from an expert group.

Amendment 74 would remove both presumptions and replace them with one new presumption whereby the courts may not order any costs to be paid between an intervener and a party to the proceedings unless there are exceptional circumstances. There, I come back to the rules of court.

In relation to the first presumption, this would have little effect, as the clause as drafted already sets out that a party cannot be asked to pay the intervener’s costs unless exceptional circumstances exist. The first presumption, as was confirmed by many of the responses received to our recent consultation on judicial review, broadly represents the status quo. In practice, interveners are usually responsible, as was pointed out in argument, for their own costs incurred in the judicial review. It will remain a matter for the discretion of the court to decide liability for costs in an individual case, but the Government’s view is that the principle should be set out in primary legislation in order to be transparent and to provide clarity both to interveners and to the parties.

It is, I apprehend, the second presumption which has caused the most disquiet, as is evident from this debate, both in the other place and more widely. I mention the other place because an amendment was tabled there in that respect on behalf of the Liberal Democrats, I think by my noble friend Lord Marks’s honourable friend Julian Huppert, although it has to be said that the Liberal Democrat position on Part 4 has ranged rather more widely than it did in the House of Commons, notwithstanding the apparent agreement in the coalition as to the inclusion of Part 4 in this Bill.

I want to set out some of the safeguards that Clause 67 already contains, in addition to the clause applying only to those who are not invited by the court to intervene. It will operate only on an application by a party. In suitable matters of high policy there may be an agreement between the parties and a potential intervener that costs will not be applied for. Even if the parties make an application, the court can decide not to make an award against the interveners.

The only costs in question will be those that the court considers are incurred as a result of the intervention and those costs must be reasonable. Neither defendants nor claimants will be able to ask interveners to pay for their decision to obtain unreasonably expensive legal advice to respond to the arguments the intervener raises. An intervener will never be asked to pay even one penny of the costs that one party has caused the other. This clause is about the financial impact on the parties which the intervention has.

For example, if the intervener raises additional points that are not germane to the case, then a party—which could be either the claimant or the defendant—may ask the court to require the intervener to pay their reasonable costs in addressing those points. This might cover counsel’s time, for example. The court will make the award if it considers that those costs were incurred as a result of the intervention and there are not exceptional circumstances that would make an order inappropriate.

It remains the case that the court will ultimately decide whether to award those costs against the intervener. If the court considers that there are exceptional circumstances that make it inappropriate to award costs against the intervener, it can decide not to make the order. As with Amendment 74, matters for the court to consider when determining whether there are exceptional circumstances will be set out in rules of court. We should not seek to second-guess the content of those rules, which as usual will fall to the Civil Procedure Rule Committee. We can, however, be confident that the rules will reflect the overriding objective of the Civil Procedure Rules, which is, as the noble and learned Lord, Lord Woolf, will know only too well, to enable the court to deal with cases justly and at proportionate cost.

These safeguards reflect the principle that an intervention should not usually cause additional costs to the claimant or to the usually taxpayer-funded defendant. They will operate to ensure that interveners are not asked inappropriately to pay the costs of a party.

I hope that no one can accuse the Government of not having considered the views that have been expressed in relation to this clause; we are continuing to do that, as I indicated. I also indicated that what has been said today will influence our thinking.

The noble and learned Lord, Lord Judge, referred to the position of the Supreme Court. The Supreme Court has its own rules and we do not purport to prescribe how the Supreme Court should reflect the questions of intervention—I am sure that many of them are extremely valuable.

We accept that interveners can bring value. The noble Baroness, Lady Campbell, referred to the case of Burke, although she will remember that that decision was reversed in the Court of Appeal when it decided that it was not to be used as an advice centre. I none the less accept the general thrust of her point.

The Government want to ensure that third-party interventions are made in the right cases, for the right reasons and after careful consideration beforehand. This means that interveners should have a fair financial stake in the case.

Bearing in mind our intention to continue to look at the clause—and I hope that the House will accept the sincerity of what I am saying; doubts were expressed by the noble and learned Lord, Lord Mackay, although he accepted that some of the Government’s anxiety was reasonable—I hope that I have been able to address noble Lords’ concerns. In those circumstances—

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[Lord Faulks]

I shall deal with those interventions in reverse order, I am very grateful for what the noble and learned Lord, Lord Woolf, said. I will bear that in mind and, rather than answer from the Dispatch Box, I will consider it carefully. Similarly, I will answer the noble Baroness, Lady Lister, in writing with details.

As to the remarks of the noble Baroness, Lady Kennedy, I obviously would not comment on the appropriateness of particular interventions in particular cases. However, I am not sure that I would entirely agree with, or that I apprehend, her thrust, which was that litigation belongs to the parties, and there are disputes—whether civil disputes or judicial review, which involves public law—where interventions may be helpful in deciding between the parties. Where I may differ from her is the approach whereby an organisation of which all of us, I suspect, would approve should nevertheless use judicial review as part of a process. There are other processes available, whether it is lobbying Government or informal processes of campaigning, lobbying or taking part in inquiries: that may be a way to do it. Nevertheless, even though these bodies can have valuable contributions in certain cases, there should be some hesitation before simply saying that this is an issue where we might be able to help.

I conclude by saying that I will take into account all the observations that have been made and inviting the noble Lord to withdraw his amendment.

[Lord Pannick]

I thank noble Lords who have contributed to this exceptionally informed debate, including the Minister. I am pleased that further thought is to be given to this clause. I hope that over the summer not just the Minister but also the Secretary of State will think again about Clause 67, because the Government’s defence of this clause is wholly unconvincing—apart possibly from the Minister’s critical comments about the attitude of the Liberal Democrats to Clause 4. I leave that aside: it is something I do not want to intrude into.

Subject to that, the Government have presented no proper defence of this clause, and I ask the Minister to ask himself and the Secretary of State two questions in particular: what is really the mischief that is being addressed here that is not already addressed by the ample powers that courts have, and what will be the inevitable consequences of this clause? The inevitable adverse consequence is that the public interest group that is considering intervening will say to itself, “We simply cannot bear the risk, and therefore we will not intervene”, and the court will be denied the information—the assistance—that courts appreciate and value. For the moment, however, I will withdraw this amendment.

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[Lord Faulks]

My Lords, this has been a useful debate and we have, by agreement, covered two groups. I will therefore respond on behalf of the Government in respect of both groups, which are effectively concerned with the same subject matter—namely, costs capping.

Clauses 68 and 69 would build on case law, particularly the Corner House case referred to by a number of noble Lords, to establish a codified costs capping regime for judicial review proceedings, to govern what is ordinarily or alternatively referred to as a protective costs order. These provisions would put protective costs orders on a statutory footing. At present, a court can make a protective costs order before it has considered whether a claimant’s case is suitable to be given permission to proceed to judicial review. Claimants with what may turn out to be weak cases can thus benefit from costs protection even if the court subsequently decides that their case should not be given permission for judicial review, thereby leaving the public body to pay its own costs of dealing with a case which had no merit. Effectively, a claimant would have had a risk-free process until then.

Subsection (3) of Clause 68 seeks to address this by ensuring that a costs capping order can be made only if permission is granted for the judicial review to proceed. Amendments 75 and 75A would remove this principle, thereby allowing the court to make an order at any stage of the proceedings.

The Government intend to ensure that, when considering bringing a judicial review, would-be claimants give due consideration to the merit of their case, so that public bodies do not bear the financial burden of unmeritorious claims. The provision should not deter those who have cases with substantial and proper grounds for challenging the Government. On the other hand, people are generally cautious about proceeding with litigation in all contexts. They would do so only if they had reasonable prospects of success, having balanced what might be obtained from the litigation and the costs of doing it. We do not therefore think that a measure of proper deterrence is inappropriate in these circumstances.

I am happy to assure your Lordships that under Clause 68 a costs capping order may cover costs incurred prior to the grant of permission, as at present. The applicant can, as now, ask the court to make the order as part of the permission application. It is right, however, that until permission is granted the claimant should bear the financial risk of bringing a weak claim because, ex hypothesi, it will be weak.

Amendment 75E seeks to remove the requirement for the court to be provided with information on funding likely to be available to an applicant when deciding whether to make a costs capping order. I do not agree that prospective funding should be excluded from the information an applicant is expected to disclose or that the court should not be asked to consider it when making the order. It is vital—and this echoes arguments made in the previous group—that the courts are 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 in fact sufficiently well resourced not to require subsidy by way of costs protection. The Corner House principles require courts to consider the financial resources of claimants who request costs capping orders to ensure that any award made is fair and just. This should be reflected in this new regime, firmly to re-establish the principle.

Clause 68 also provides that in judicial review proceedings a court may make a costs capping order in favour of a claimant only if it considers that the proceedings are “public interest proceedings”, and sets out factors the court must consider in making this decision. This reflects the principle in the Corner House case that costs capping orders should be made only if the issues raised are of general public importance and the public interest requires those issues to be resolved. Part of the effect of Amendment 75F would be to remove any public interest requirement, and Amendment 77 would remove the list of factors to which the court should have regard when considering whether the case is in the public interest.

The Government consider that it is right that costs capping orders should be made only in public interest cases, otherwise costs capping orders could be made in cases where no order would have been made under the Corner House principles. In fact, the amendments are therefore effectively a loosening of the established law. The taxpayer should be asked to subsidise cases only where there truly is a public interest in the case proceeding.

[Lord Pannick]

The Minister mentioned the interests of the taxpayer. Can he assist the Committee on how many costs capping orders have, in fact, been made over the past few years, other than in environmental cases, which are dealt with separately in Clause 70?

[Lord Faulks]

The noble Lord mentioned a figure of 30 such cases. I do not have any precise figures.

[Lord Pannick]

I mentioned 20 cases, which covered all the environmental claims. I think that there have been only a handful—two or three—costs capping orders that are not environmental. Does the Minister have any more authoritative figures, because I do not understand the problem to be substantial?

[Lord Faulks]

I do not have any more authoritative figures. I will certainly write to the Committee before Report giving those figures, if they are available. I cannot guarantee that they are available, but if they are, I will certainly assist the Committee. We have, however, to consider not only the past position but the position prospectively. It is necessary in this context to consider what might be done in the future were there, as some of these amendments suggest, to be a loosening of the rules.

It is important that the matters listed in the clause are taken into account. I do not consider the factors to be contentious. Common sense dictates that, in deciding whether proceedings are public interest proceedings, consideration needs to be given to the number of people directly affected and the significance of the effect. It is also right that the court considers whether the proceedings involve consideration of a point of law of general public importance.

Clause 68 sets out three requirements in subsection (6) that proceedings must meet before a costs capping order can be made: first, that the proceedings are “public interest proceedings”; secondly, that in the absence of the costs capping order the claimant would not continue with the judicial review; and, thirdly, that it would be reasonable for the claimant to act in this way. Amendment 75F seeks to remove these entirely and Amendment 76 would remove the third of these criteria.

The noble Lord, Lord Pannick, was concerned about how this subsection would be interpreted.

--- Later in debate ---

[Lord Faulks]

My Lords, Amendments 82 and 85 concern legal aid for judicial review and seek to prevent the Government making changes to the eligibility or scope of legal aid for judicial review, including making changes to remuneration for providers. They also seek to annul any statutory instruments that have been made through the powers available under Sections 2 and 9 of the LASPO Act 2012 which have the effect of altering eligibility for, or the availability of, legal aid for judicial review. Amendment 85 would bring the new clause into force on the date of Royal Assent.

Your Lordships will already be aware that remuneration arrangements for civil legal aid cases have recently been amended in regulations made under Section 2 of LASPO, so that legal aid remuneration to providers for work on judicial review permission application is at risk. The noble Lord, Lord Beecham, suggested, perhaps inadvertently, that people would not be paid for the work building up to making the application. That is not quite right: you do get legal aid for that and, if your application is successful, you will get all the costs. The only part of the process that is at risk is the application process itself in that you will not be able to get legal aid for that, but you will recover the costs in due course if you are successful. I dealt with that in some detail in my response to the relevant debate. I could, if necessary, refer to the very lengthy speech I made on that occasion, but I hope that I can save the Committee the trouble of listening to that. It is a matter of record and so I will not do so at this juncture.

More generally, if the legal aid system is to command public confidence and credibility, limited legal aid resources should be properly targeted at those judicial review cases where they are needed most. This is why we introduced amendments to the Civil Legal Aid (Remuneration) Regulations 2013 to limit the circumstances when legal aid providers should receive payment for work carried out on an application for permission. I should stress that the regulations made under Section 2 of LASPO do not affect the scope of civil legal aid for judicial review or the eligibility for legal aid in judicial review proceedings. 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. Indeed, the pre-action protocol will very often result in the matter being resolved without the need to go on to seek permission at all.

The amendments appear intended to stop the Government having the ability to make changes to civil legal aid scope and remuneration for judicial review except via primary legislation. The form of legislation and level of parliamentary scrutiny to which provisions in relation to the remuneration of providers and scope of civil legal aid are subject were considered only recently by Parliament during the passage of LASPO, and we continue to believe that they are appropriate. We have no current plans to alter the scope of legal aid for judicial review. However, the power to make any such changes in the future, including in respect of potential expansion, should not be unnecessarily constrained as proposed. I recall an amendment, to which I think I was a party, which sought to enable the LASPO Bill to contain a power not only to delete but also to add provisions in relation to the availability of legal aid if the situation were to improve.

Making such changes by primary legislation would be a cumbersome process and a disproportionate use of the House’s time, particularly for a minor or technical change. It would stop the Government of the day making necessary but minor changes without primary legislation, even where these were necessary to ensure that the provision remained up to date. Further, 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. Although I do not deny for a moment that judicial review is of great constitutional importance, so for many individuals are their own cases involving significant, as they would no doubt say, violations of their rights, civil rights of one sort or another, or their right to recover damages. In the light of what I have said, I would respectfully ask the noble Lord not to press those amendments.

I now turn to Amendment 82A, which seeks to prevent a residence test being applied to any proceedings for judicial review. Noble Lords are aware that the proposed residence test was recently challenged by way of judicial review. The High Court handed down judgment on 15 July and found in favour of the claimant. We are appealing the judgment and are currently considering the next steps that will be taken. I think it will go to the Court of Appeal first and then perhaps on to the Supreme Court. I hope, therefore, that noble Lords will understand that it is not appropriate for me to comment in great detail on that, in view of the ongoing proceedings.

Of course, the noble Lord, Lord Pannick, drew attention to the observations that the Secretary of State was alleged to have made, and probably did make, according to the Daily Telegraph—

[Lord Pannick]

It was not that he was alleged to have made them. He wrote an article in his own name in the Telegraph.

[Lord Faulks]

My legal caution found me using the expression “alleged”.

[Lord Faulks]

I am grateful for that contribution.

The Lord Chancellor made in the Daily Telegraph various comments which resulted in what was described—not alleged to have been described—as a “kick in the shins” by Lord Justice Moses. All I can say is that, during the time I have been standing at the Dispatch Box, the Lord Chancellor’s shins have been extremely bruised by the number of comments that have been adverse to him personally, to his responsibility to the office or to his disregard for the rule of law. I am sure that he is painfully aware of the harm that has been done to him by the observations that have been made. It is a matter for your Lordships whether you think that is appropriate.

I should also say this. Of course, the withdrawal of legal aid in any context is not something that any Government relish, but throughout the period—and we are now coming to the end of this Parliament—the party opposite has opposed all cuts to legal aid, whether they are civil legal aid cuts or criminal legal aid cuts. They have advanced very skilfully all sorts of arguments about the outrage that has followed. It is time for some clarity to emerge from the party opposite as to whether it will in fact restore legal aid to all these areas where it is said that it has been wrongly withdrawn or whether this is to some extent posturing on their part.

The noble Baroness, Lady Lister, referred to the difficulties that she described of children in particular in relation to the residence test. Although, as I say, I am not going to go into great detail because it is all to be considered by the court—at least in terms of the vires of the residence test—the Government’s position is that they do not believe that the JCHR should have concluded what it 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. There have always been cases where the child speaks for himself directly or where a parent or guardian ensures that the views of the child are properly taken into account. The Government are not aware of any evidence before the committee that indicated in such cases the child is not able to express views and participate appropriately in legal proceedings.

Following the ruling of the court in the residence test case, noble Lords will be aware that the draft order introducing the residence test was withdrawn. The amendment before the Committee now would therefore introduce an exception to the residence test in the abstract. I would respectfully suggest that the appropriate place to consider any exceptions would be while considering the residence test as a whole, rather than in isolation and in the context of a free-standing provision for judicial review. Nevertheless—there should be no mystery about this—I should make it clear that we do not agree that an exception should be made to the residence test for all judicial review proceedings. The test reflects our view that individuals should have a strong connection to the United Kingdom in order to benefit from the civil legal aid scheme. In line with those principles, we therefore decided that, in general, applications for legal aid for judicial review proceedings should be subject to the same test.

The noble Baroness, Lady Lister, referred to certain “concessions”, as she described them. What happened was that, following careful consideration, we proposed certain limited and focused exceptions for judicial review cases that relate to an individual’s liberty, and for certain immigration and asylum judicial reviews. I am glad that she called them concessions; she previously described the Government’s position as a “climb-down”, which is perhaps not a kind way in which to describe the approach that the Government try to take on difficult decisions.

We believe that the residence test is by and large a fair test that should make sure that legal aid is targeted at those cases where it is justified. Moreover, it achieves the essential policy aim of targeting legal aid at those with a strong connection to the United Kingdom. I therefore ask the noble Lord to withdraw the amendment.

[Lord Pannick]

I am grateful to the Minister. I would be happy to provide him with a copy of Mr Grayling’s interesting article in the Telegraph of 20 April 2014. It is, as I said, written by him. He is not responsible for the headline but it gives a flavour of what he wrote. It states:

“We must stop the legal aid abusers tarnishing Britain’s justice system”.

There is no doubt whatever that, as with anything in life, abuse is possible. However, I take the view that the remedies that the Lord Chancellor is seeking to implement through Part 4 of the Bill are far worse than any disease that the Lord Chancellor has diagnosed. It is that article, with its reference to,

“Another group of Left-wing lawyers”,

taking the Government to court that provoked the response—a very appropriate response—from the High Court that it is the role of the court to decide not who is bringing the claim but whether the claim has merit and substance, and whether the proposals are a breach of the rule of law.

I hope that the Minister, who well understands these points, will be able to convey to the Lord Chancellor the belief of many of us in this House and outside that it would be far better if he would concentrate on the question of substance, of legality, rather than the political characteristics, if any, of the persons who are bringing the complaint. They go to court not to make political points but to make legal points. If they did not do so, the court would immediately tell them that it would not listen to them,

As to the amendments, my objection remains to the use of secondary legislation to make fundamental changes to the availability of legal aid for judicial review. There is no doubt that to restrict legal aid for a permission hearing in circumstances in which leave is not granted—it is often not granted because the defendant has given way and recognised the defect—is a fundamental change in the availability of legal aid. It will make it, and is making it, much more difficult for people to bring well founded claims. The same is true of the residence requirements that the High Court has held to be unlawful.

I am not therefore persuaded by the Minister’s observations, eloquently though they were presented, and unless the Government are prepared to look again at these matters, the House will need to return to these issues on Report in October. For today, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Pannick]

My Lords, I added my name to the amendment in the name of the noble and learned Lord, Lord Woolf. I entirely agree with the observations made by the noble Lord, Lord Deben. My concern is that the power the Lord Chancellor has under Clause 73(1) extends not only to “consequential” provisions, which is understandable, or to “incidental”, “transitional” and “transitory” provisions—again, entirely understandable —but to anything that is supplementary. That is an extraordinarily broad power: a power to make supplementary provisions.

In other words, as I understand it, if the Lord Chancellor believes that anything falls within the scope of the general area or subject matter of the Bill, he may, by subordinate legislation, make provision to supplement that which Parliament has anxiously debated and may have amended and approved. Under Clause 73(2), this power extends to repealing and revoking legislation. That is a remarkable power. I can see no reason whatever why such a power should be enjoyed, far less in the context of the very sensitive and delicate issues addressed by the Bill—including, but not only, those in Part 4.

[Lord Faulks]

My Lords, when one gets to the final provisions in a Bill whose Committee stage has lasted for five days, one might think that the debate has come to an end. However, that is not so. It is hard to avoid the fact that the approach of a number of noble Lords is coloured by the nature of the debate on the clauses that come before those final provisions. 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.

I do not think it is appropriate for me to provide a personal defence. Here, we are looking at a pretty commonplace provision contained in Clause 73. I say 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 a provision that says:

“The Lord Chancellor or the Secretary of State may by regulations make consequential, supplementary, incidental, transitional, transitory or saving provision in relation to any provision of this Act”.

That is identical to the power in Clause 73. Section 53 of the Pensions Act 2014, under the heading “Power to make consequential amendments etc”, says:

“The Secretary of State or the Treasury may by order make consequential, incidental or supplementary provision in connection with any provision made by this Act”.

Section 20 of the Offender Rehabilitation Act 2014, under the heading “Consequential and supplementary provision etc.”, says:

“The Secretary of State may by order make consequential, supplementary or incidental provision in relation to any provision of this Act”.

Therefore, this—in particular, the use of the word “supplementary”, which I understand those who have proposed these amendments have a particular difficulty with—is not unfamiliar territory.

It is something of an irony that at various stages in Committee I have been subjected to a large number of interventions by the noble Lord, Lord Davies, who is not currently in his place. During the debate on a previous group, he ventured an observation in relation to this provision, saying that it was wholly unexceptionable as compared with the terms of clauses elsewhere. Sadly, he is not here to expand upon his views; nevertheless, I draw some comfort from the fact that they had come from an otherwise harsh critic of this legislation.

Despite every effort, it is not always possible to identify every necessary amendment to primary legislation, and it would not usually be appropriate to include amendments to existing secondary legislation in primary legislation. As noble Lords—many highly experienced, and more experienced than I am, in parliamentary procedure—will know, it is usual practice for a suitable power to be included in a Bill to ensure that its provisions can be brought into force. Amendment 83 would amend the power in Clause 73 to make such provisions by removing the Secretary of State’s power to make supplementary provision.

Noble Lords are concerned about the breadth of this power. The power to make supplementary provision was included in this clause in recognition of the complexity of the legislative framework within which sit some provisions of the Bill, particularly those relating to sentencing and the new single justice procedure. The consequence of not being able to make supplementary provision could be to inhibit the proper operation of aspects of the Bill. In relation to sentence calculation, this could even be to the detriment of an individual. The drafting, as I have indicated, is similar to that approved in similar legislation.

[Lord Pannick]

Is the Minister really saying that such examples would not fall within the concepts of “consequential”, “incidental”, “transitional” and “transitory”?

[Lord Faulks]

I am not saying that they would not. This form of words is sufficiently wide, including the various adjectives that it does, to cover a variety of situations, and if one particular adjective does not serve, another will serve. There will be an overlap between the two. I do not accept that the word “supplementary” is as offensive as has been suggested.

Criminal Justice and Courts Bill

Debate between Lord Faulks and Lord Pannick

Monday 28th July 2014 Lords Chamber

[Lord Faulks]

I think that is very much the same comment the noble Lord, Lord Beecham, made, although expressed in slightly different terms. As I will come on to explain, we suggest that the clause—if it is incorporated into the Act—would still give the judge discretion. We are simply making it clearer where the bar is placed.

At present the courts will find that there will be no difference where the end result was inevitably the same. Amendments 71B, 71C, 72B, 72C, 73C and 73D and the amendments consequential upon those would go further in adding additional requirements concerning the public interest and the overriding objective. Those additional requirements do not apply at present as the law is understood by the Government.

The current threshold is already extremely high. In the Government’s view, this means that judicial reviews can be grounded on technicalities which would in practice have made no difference to the end result, or, ultimately, the applicant. That is why it comes up so rarely, and that is why we wish to modify the current approach. In the Government’s view, scarce court resources would be better applied to cases in which a difference to the outcome is more likely. But I reassure noble Lords that, as drafted, what Clause 64 does not do is make the exercise of this power in any way routine. This is because the clause applies the standard of “highly likely”. This will remain a high threshold, and when there is any significant doubt that there could have been a difference for the applicant, the threshold will simply not be met.

Concerns have been raised that in applying this approach of diligence, the courts will be dragged into the forbidden ground of a merits-based review, where they insert themselves into the decision-maker’s shoes. I respectfully disagree with this. I am sure that the courts will continue with the established way in which judicial reviews progress; namely that they consider the process which led to, and not the merits of, the decision, the legality of the process being the essence of the challenge. They will perform this exercise even in the examples postulated by the noble Lords, Lord Beecham and Lord Davies. It is inevitable that they will have to look at the facts there and then on the basis of the information. What we are suggesting is that a very low bar is raised slightly higher, but the exercise will be performed at the same stage.

Furthermore, there is an additional reason why this exercise should not create real difficulties for judges. Judges often have to make decisions on the basis of information available to them which is not complete. For example, in a civil claim where, let us say, a claimant is suing for negligence, the defendant may argue that the claim should be struck out on the basis that it discloses no cause of action. There the claimant’s case may be taken at its highest, and the argument proceeds that even if the claimant is right, the claim is not sound in law and must therefore be struck out, to which the answer often given by claimants is, “Well, my Lord, you haven’t heard the evidence. If you hear the evidence and get a clearer view of the matter, then our slightly adventurous case may be seen in a better light”. Sometimes that argument is persuasive, but very often judges are able to take the view that the position is sufficiently clear for it to be uneconomic and unnecessary to hear the case. This is the task they perform.

Nor do I think that the “highly likely” test should be beyond the agility of our very distinguished judges performing in the High Court, as the noble Lord, Lord Elystan-Morgan, emphasised. It is not the balance of probabilities, but the “highly likely” test is something I feel confident that they will be able to apply.

Amendments 72E and 73A probe the scope of Clause 64 in practice following the recent report of the Joint Committee on Human Rights, to which the Government responded in July, over what types of flaw the clause will affect. In the Government’s view, the term “procedural defect” is too imprecise to be used in legislation. The grounds for judicial review are not defined in legislation; doing so in certain areas would be a significant step. “Procedural defect” has no accepted definition at present under case law, and it would be virtually impossible to arrive at one that would stand the test of time, given how judicial review evolves with each new decision. Furthermore, it would lead to the risk of satellite litigation, referred to by a number of noble Lords.

We have also heard concerns that the clause will cause administrators to act unlawfully, for sinister motives, safe in the knowledge that, if challenged, they will have a “get out of jail” card. No decision-maker is going to follow knowingly an unlawful process simply because they think that at some point in future they may be able to argue successfully that there would have been no difference to the outcome. This is particularly so, as I have already indicated to your Lordships’ House, because our reforms have maintained a very challenging threshold.

Lest it be thought that the Government have not listened and are ploughing on regardless of the views expressed by others, I say that the question of standing was one that was often considered controversial in the reform of judicial review, and the Government initially thought that there ought to be a real connection between the claim and the applicant. The applicant state is referred to by the noble Lord, Lord Pannick. I looked at the White Book as to the summary of the development of the sufficient interest test for standing, and it contained this comment:

“The courts have adopted an increasingly liberal approach to questions of standing over recent years”.

Quite so—but the advantage of having a fairly elastic rule on standing was acknowledged by the Government on the basis that sometimes it is important that these cases are brought forward. It is an indication that the Government are making appropriate responses to the concern that has been expressed.

Some have argued that this clause will add delay to the consideration of judicial reviews by potentially requiring fuller argument at the permission stage. That is in part, as I apprehend it, the basis for Amendments 72 and 73, which would remove the requirement for the High Court or Upper Tribunal to consider a no-difference argument when it is raised by the defendant in the response to the application for permission. The Government consider that it is entirely proper that, when a no-difference argument is made by a defendant, it should be considered by a court or tribunal. I accept that when this argument is raised it requires courts to look at the case and the issues with care, but they do that at the moment. I do not think that that would mean that judicial reviews would become overlong. On the argument being raised more often, I say that it should be put only by defendants sure or confident of their arguments and position; if made without a sound basis, I would expect the courts to look to costs, which would act as a sufficient deterrent. In due course, we will invite the Civil Procedure Rules Committee to create a process that allows for oral arguments on this question at permission. While it would be wrong of me to pre-empt that committee, I am sure that it will be done in a way that makes the procedure straightforward and cost effective.

Amendments 72 and 73 would also remove the duty on the court to refuse permission when satisfied that it is highly likely that in the absence of the flaw complained of the outcome would not have been substantially different for the applicant. Those are, effectively, wrecking amendments. The Government’s view is that in those situations permission should not be granted.

[Lord Pannick]

Could the Minister clarify the Government’s position on the point that I understood was raised by the noble and learned Lord, Lord Mackay of Clashfern? As I understood him, the Minister suggested that even under Clause 64 the court could allow a judicial review claim to go forward and could grant a declaration of illegality, even if the outcome of the administrative process would have been the same for the claimant because the outcome of the litigation would be different. It would be a declaration. I see him nodding. For my part, I understand Clause 64 to refer to outcome as meaning the outcome of the administrative process. However, if I am wrong, could the Minister say so?

Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014

Debate between Lord Faulks and Lord Pannick

Wednesday 7th May 2014 Lords Chamber

[Lord Faulks]

I hope I have made it clear that I would take back the observations that were made during the course of the debate. I will, of course, add to that the comments made by my noble friend just now.

[Lord Pannick]

My Lords, the poor quality of these regulations has provoked a debate of the highest quality. I thank all noble Lords who have participated in identifying defects in these regulations. I also thank very sincerely the Minister, who has put the Government’s case without any support whatever from the Benches behind him. It is no reflection on the noble Lord’s very considerable powers of advocacy to say that the arguments he has advanced tonight in support of the Government’s position are, to use a phrase commended during the debate, wholly without merit.

The Minister emphasised that the Government are not abolishing judicial review. We must be thankful for small mercies. It is no defence to a charge of criminal damage for the defendant to say, “I have not committed a murder”. The Minister says—and who could disagree?—that hopeless cases should not be funded by judicial review. Of course they should not, but the Minister will appreciate that the thrust of this debate is that the test imposed by these regulations does not distinguish between hopeless and other cases, as would be the case if the judge were to have a power to determine for the purposes of legal aid whether the case is hopeless. I am pleased that the noble Lord has given a commitment to ask the Lord Chancellor to reflect on what has been said tonight. I hope that the Minister will be able privately to add his concerns to those expressed in the House.

I have one other point: your Lordships will have a proper opportunity in the next Session for detailed scrutiny of the Lord Chancellor’s attempts to neuter judicial review in the most regrettable proposals in the Criminal Justice and Courts Bill. I am confident that, as the noble Lord, Lord Cormack, said of these regulations in his powerful speech tonight, there will be in the next Session a coalition of Peers from all sides of the House who will express their concern about the Lord Chancellor’s proposals and, I hope and expect, in relation to that Bill will demonstrate their commitment to the rule of law in the Division Lobbies. Like so many of your Lordships and so many outside this House, I regret these regulations. I beg leave to withdraw the Motion.

Anti-social Behaviour, Crime and Policing Bill

Debate between Lord Faulks and Lord Pannick

Tuesday 11th March 2014 Lords Chamber

[Lord Faulks]

My Lords, this has been an excellent debate once more, in which the House has shown its considerable knowledge, learning and experience of the issues raised by this amendment. Let me start by saying that there is general agreement on one thing: the Government were right to seek to enshrine in legislation the appropriate test for eligibility for compensation following a miscarriage of justice. The common law was undoubtedly in a state of confusion, notwithstanding the distinction of the judges engaged in the exercise of trying to provide a workable test. The decision in the Adams case, a resounding 5:4 victory, was described in a way that I could not possibly presume to describe it by the noble and learned Lord, Lord Brown, as an unprincipled fudge. It was, of course, a culmination of effort—an absolutely high-quality effort—to try to arrive at a workable definition. However, the noble Lord, Lord Pannick, says that the Government’s test will lead to disaster—to acrimonious litigation and uncertainty.

I have respectfully to disagree, because the Adams judgment has resulted in some 16 judicial review cases in the three years since the judgment. During the period from 2008 to 2011, when the case law laid down by the courts required, consistent with the Government’s position, that the applicant was clearly innocent, only two judicial reviews resulted from applications from those convicted in England and Wales. Therefore, there is likely to be acrimonious litigation. I am somewhat reluctant to be drawn on what the result would be in any particular cases, whether it is the Sally Clark case or other cases. The noble Lord, Lord Brennan, was, I think, referring to compensation under the ex gratia scheme, which was abolished by the Home Secretary in 2006. Here we are considering revisions of Section 133, which requires that the applicant has a conviction—whichever definition is adopted—and this will continue to be a requirement.

The difference of opinion on definition is simply what a claimant has to establish. It is said that the Court of Appeal Criminal Division is not primarily concerned in these cases with proving innocence—quite so. It may well decide that a conviction is unsafe, but in doing so, the Court of Appeal will, and does, provide cogent and comprehensive reasons for that decision. It does not simply declare it. That provides the basis on which the Secretary of State or those working under his direction will be able to make an assessment entirely in accordance with the very straight- forward and clear test that we suggest is appropriate.

The noble Lord, Lord Pannick, said that our law does not ask someone to prove their innocence. I agree entirely. Nor does this provision. It does not require an applicant to prove their innocence; it simply requires them to prove eligibility for compensation—money—when they are clearly innocent, to use the expression used in the common law or, as we describe it in statutory language, proof that they have not done it.

We ask the House to bear in mind that we have a position of uncertainty and litigation, which requires clarification by Parliament, as is agreed. Parliament has provided as clear a definition as can reasonably be arrived at, and one which we say is consistent with justice, does not offend the presumption of innocence and resolves the difficulties that judges have had in arriving at a workable conclusion.

The presumption of innocence is not in any way offended by the clause. I suggest to the House that it should agree that the House of Commons has considered carefully the high quality of the debate and the division of opinion among noble and learned Lords, and should respect and confirm the House of Commons decision.

[Lord Pannick]

My Lords, I am grateful to the Minister for the careful way in which he has addressed these matters and for the time and trouble that he has taken on this issue, not least in the helpful discussions that I have had with him over the past few months. My noble and learned friend Lord Brown of Eaton-under-Heywood spoke in favour of the Government's position. As he mentioned, he dissented in the Adams case. He did not approve of the test of the noble and learned Lord, Lord Phillips, in 2011 and he continues, as he is perfectly entitled to do, to dissent from the case made by the noble and learned Lord, Lord Phillips. The noble and learned Lord described the test of the noble and learned Lord, Lord Phillips, as a fudge. Some of us are quite partial to fudge, but I confine myself to reminding your Lordships of what was said in the Supreme Court in answer to the noble and learned Lord, Lord Brown, by the noble and learned Baroness, Lady Hale, in her judgment in the Adams case. She said:

“I do sympathise with Lord Brown’s palpable sense of outrage … But Lord Phillips’ approach is the more consistent with the fundamental principles upon which our criminal law has been based for centuries. Innocence as such is not a concept known to our criminal justice system. We distinguish between the guilty and the not guilty”.

A person does not have to prove their innocence in court, said the noble and learned Baroness, Lady Hale —I agree—and a person should not be required to prove their innocence when they apply for compensation after a miscarriage of justice has been established in the Court of Appeal.

As the noble and learned Lord, Lord Hope of Craighead, said this afternoon, the Government’s approach will inevitably mean that people who are in fact innocent will fail to obtain compensation for a wrongful conviction established in the Court of Appeal simply because they cannot prove—it is often very difficult and sometimes impossible to prove—that they did not commit the crime. The Minister said in his observations in reply that the Government’s test does not require an applicant to prove their innocence. That is precisely what the Government’s amendment does; that is precisely what is so objectionable.

I remain concerned not just about the principle; I remain very concerned about the practical consequences of the Government’s amendment. We are dealing here, as I said in opening, with the most sensitive, controversial cases in criminal law. The Court of Appeal will have allowed an appeal because the prosecution case has been fatally undermined. The defendant is released from prison. He or she may have been in prison for many years. Then, say the Government, the Secretary of State must pronounce on whether that applicant has proved that he or she did not in fact commit the crime.

Nothing is more likely to prolong the misery of the miscarriage of justice not just for the applicant but for the family of the victims of the crime, whoever committed it. Nothing is more likely to provoke further litigation. It has never been the role of a Secretary of State in our system of law to determine whether a person is innocent of an offence. I do not think that it is desirable that we should now make it the role of the Secretary of State to determine whether someone is innocent of an offence. I wish to test the opinion of the House.

Legal Aid

Debate between Lord Faulks and Lord Pannick

Tuesday 11th February 2014 Lords Chamber

[Lord Pannick (CB)]

My Lords, the noble Lord said that Section 10 is working effectively. Will he give further consideration to the recommendation of the Low commission, chaired by the noble Lord, Lord Low of Dalston, that the application process for Section 10 is much in need of simplification? Will the Government act on the concern expressed by the Joint Committee on Human Rights about the lack of training for Legal Aid Agency employees who are responsible for making decisions about Section 10?

[Lord Faulks]

The Government are aware of the JCHR’s concern about the lack of training. I have been reassured that the employees are appropriately trained and aware of their responsibilities. In terms of the forms, I give the same answer that I gave before, which is that the matter is kept under review. It is believed that the forms are perfectly within the capabilities of solicitors to understand. If one of these forms is inadequately filled in, you are told, whereas with some forms in other contexts you never know which box you failed to tick.

Criminal Legal Aid (General) (Amendment) Regulations 2013

Debate between Lord Faulks and Lord Pannick

Wednesday 29th January 2014 Lords Chamber

[Lord Faulks]

I cannot I am afraid give an exact date for that, but I shall take back the noble Lord’s concern and I will write to him when I have information. Of course, it is a matter that will be taken very seriously at the Ministry of Justice.

[Lord Pannick]

My Lords, I am grateful to the Minister for doing his best to defend this sorry set of regulations. The Government are very fortunate indeed to have his services on the Front Bench. I am grateful to all noble Lords who have spoken in this debate and who have explained with clarity and force why the regulations are wrong in principle and damaging in their consequences.

The Minister may have noticed the embarrassing lack of support for these regulations on the Benches behind him, and indeed anywhere in this House tonight. Before the Minister’s speech, your Lordships heard 15 speeches—I have been counting—all of them regretting these regulations and all highly critical of them and of the purported justifications for them. Noble Lords who have spoken tonight have reflected the widespread concern about the regulations that exists outside this House.

The Minister’s main argument, that the internal complaints system and the ombudsman system are an effective substitute for legal assistance and advice, is simply contrary to the advice of the Parole Board, the inspector of prisons and the ombudsman. It is contrary to court judgments over the years. It is contrary to the experience of all those who have spoken tonight, apart from the Minister. Indeed, it is irrational, given the lack of literacy, the youth, the immaturity and the mental health difficulties of so many prisoners, let alone their obvious inability to identify and present the issues that arise in their cases.

I ask the Minister to send a copy of today’s Hansard to the Secretary of State tomorrow morning, to ask the Secretary of State to reflect on the nature and strength of the concerns that have been expressed tonight from the broad experience and expertise that so characterise this place, to draw the Secretary of State’s attention to the absence of any support for these regulations outside his own ministry and to ask the Secretary of State to think again about this important matter. I beg leave to withdraw the Motion in my name.

Anti-social Behaviour, Crime and Policing Bill

Debate between Lord Faulks and Lord Pannick

Monday 27th January 2014 Lords Chamber

[Lord Pannick (CB)]

I add my thanks to the Minister, the whole ministerial team and the Bill team for the remarkably constructive way in which they have addressed all the many issues that have arisen under this complex Bill. I ask the Minister one question. Will the welcome sense of harmony that has been displayed today extend to the amendment that the House carried last week on the definition of when compensation will be paid for a miscarriage of justice? Is the Minister able to tell the House whether the Government will commend that amendment to the other place?

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, this gives me an unexpected opportunity to come to the Dispatch Box. On behalf of the Ministry of Justice, I would welcome a conversation with the noble Lord, but I can go no further than that.

Anti-social Behaviour, Crime and Policing Bill

Debate between Lord Faulks and Lord Pannick

Wednesday 22nd January 2014 Lords Chamber

[Lord Faulks]

I thank the noble Baroness for her question. I am reluctant to go into the particular facts of the Sally Clark case. Indeed, during the debate there have been somewhat different interpretations of that material. Of course, one hopes that if the evidence was available at the outset there would be no trial, no one would be charged, or at least a defendant would be acquitted.

This is a narrow but important provision where new facts have come to light. Of course, as the noble and learned Lord, Lord Brown, said, a number of defendants have their convictions overturned on appeal in time—this is out of time—who may have spent considerable periods in custody, unjustifiably as it turns out. This is a narrow area. The question of the presumption of innocence goes to whether or not they are guilty of an offence, but this, which I hope answers the noble Baroness’s question, is entirely concerned with eligibility for compensation—a different matter altogether. We, the Government, consider that the amendment—this is not in quite the same form as the amendment tabled in Committee—will provide, as is apparent from a number of cases before the courts, for further protracted and expensive litigation.

The noble Lord, Lord Pannick, accepted at the outset when moving the amendment that this was a difficult issue on which distinguished legal minds had expressed different views. Your Lordships have heard some of those distinguished legal minds and have expressed themselves in writing at considerable length. There is no easy answer to this question. Attempts have been made to formulate a test. A test was formulated by the noble Lord, Lord Beecham, and those supporting him in Committee. We have a slightly different test today. I do not decry the elegance of the amendment, nor the thinking behind it but I suggest that the Government’s proposal in the Bill has the advantage of clarity, simplicity, straightforwardness and it does not offend the presumption of innocence. In those circumstances I urge the noble Lord to withdraw his amendment.

[Lord Pannick]

My Lords, this has been an informed and interesting debate on what the Minister rightly describes as a very difficult question. I am grateful to all noble Lords who have spoken, particularly to the Minister for his conspicuously careful and fair analysis of the issues before the House.

However, the Minister’s eloquence cannot remedy the defects that we have been debating for more than an hour and a half in Clause 161. First, as the noble and learned Lord, Lord Phillips of Worth Matravers, said, when the Court of Appeal has quashed a conviction it is simply wrong in principle to require the defendant then also to establish beyond a reasonable doubt that he or she is innocent. This is incompatible with the presumption of innocence, as the noble and learned Lord, Lord Hope of Craighead, said this afternoon.

The noble Lord, Lord Elton, asked the Minister if there are any other contexts in the criminal law in which a defendant is required to prove his innocence. The Minister’s response was that Clause 161 does not offend against the presumption of innocence, but the answer to the noble Lord’s question is that there are no other contexts in our law in which a person is required to prove his or her innocence.

I understand the concern expressed by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, which repeated—none the worse for that—the dissent that he gave in the Supreme Court in the Adams case. However, the answer to the noble and learned Lord was given in that case by the noble and learned Baroness, Lady Hale of Richmond, at paragraph 116. The noble and learned Baroness, who cannot be in her place today because she is a serving member of the Supreme Court, said:

“I do sympathise with Lord Brown’s palpable sense of outrage that Lord Phillips’ test”—

that, of course, is the test in the amendment—

“may result in a few people who are in fact guilty receiving compensation … I say ‘a few’ because the numbers seeking compensation are in any event very small. But Lord Phillips’ approach is the more consistent with the fundamental principles upon which our criminal law has been based for centuries. Innocence as such is not a concept known to our criminal justice system. We distinguish between the guilty and the not guilty”.

That is the answer to the noble and learned Lord, Lord Brown of Eaton-under-Heywood.

There is a second defect in Clause 161 to which, with respect, the Minister has no adequate answer. It would require the Secretary of State to decide on the innocence of defendants whose convictions have been quashed. To require the Secretary of State to perform that role when no court has done so would be to impose a complex and contentious role on Ministers in cases which are among the most sensitive.

[Lord Faulks]

When someone has had their convictions overturned, the Secretary of State would, as the noble Lord will realise, have the benefit of the Court of Appeal’s reasoned judgment to assist him.

[Lord Pannick]

As the noble Lord well understands, the Court of Appeal will not have pronounced on innocence. To require the Secretary of State to decide not only whether there has been a miscarriage of justice because of some new or newly discovered fact, but whether, in truth, the defendant is innocent, will inevitably lead to protracted litigation which will simply prolong the pain and suffering caused by the miscarriage of justice which led to the quashing of the conviction.

As King Lear said, “That way madness lies”. It is that way madness lies for the Secretary of State and for the defendants, although not of course for the lawyers who will benefit considerably from Clause 161. I cannot accept that the amendment is any less clear or any more likely to produce litigation than Clause 161. Amendment 94E raises an important issue of principle. It seeks to enact the test of the noble and learned Lord, Lord Phillips, for the Supreme Court in Adams. I wish to test the opinion of the House.

--- Later in debate ---

[Lord Faulks]

My Lords, in Committee, the noble Lord, Lord Pannick, tabled an amendment seeking to abolish the defence of marital coercion. The Government agreed to return with a view on that matter on Report and, accordingly, we have tabled these amendments.

As the noble Lord, Lord Pannick, explained in the earlier debate, it is currently a defence to all criminal offences other than treason and murder for a wife to show that she committed the offence in the presence of, and under the coercion of, her husband. The defence is an historical one. It was introduced in England and Wales by Section 47 of the Criminal Justice Act 1925, which abolished the previously existing presumption that a wife who committed any offence except treason or murder in the presence of her husband did so under his coercion and that she should therefore be acquitted. For these historical reasons, the defence applies only for the benefit of a woman married to a man.

Time has moved on. The circumstances in which the defence made sense no longer pertain. It is now an anachronism, and we accordingly agree that it can be consigned to history. I commend the noble Lord, Lord Pannick, for raising this issue and he can rightly take the credit for this overdue reform. I beg to move.

[Lord Pannick]

My Lords, I am very pleased that the Minister has responded so positively to the amendment which I tabled in Committee and thank him for it. As he said, prior to 1925, the law contained a presumption that a wife was coerced by her husband. The Minister said that time moves on, but Sir James Fitzjames Stephen, the great 19th century authority on criminal law, described this area of the law as “irrational”. In 1922, the Avory committee recommended abolition of any special rule for wives and so did the Law Commission in its 1977 report. Therefore, it could not sensibly be suggested that law reform in this context has in any way been rushed.

It was of course this area of the law to which Charles Dickens referred in Oliver Twist. When Mr Bumble is told that,

“the law supposes that your wife acts under your direction”,

he replies:

“If the law supposes that … the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor”.

I am delighted that this truly idiotic provision of English law is at long last to be abolished.

Justice and Security Bill [HL]

Debate between Lord Faulks and Lord Pannick

Tuesday 17th July 2012 Lords Chamber

[Lord Pannick]

The noble Lord is correct and I accept, at least to an extent, that there may be Clause 6 cases where a discrete, fundamental issue can be identified at an early stage. However, I suggest that there will also be cases—the majority, I suspect—where the issues will not be formulated and clarified in this specific way on a preliminary strike-out basis. I am concerned that it is inevitable that there will also be cases where fresh evidence comes to light or where, as a result of the way the case is put in the trial, new Clause 6 issues arise. It seems impractical to require the trial judge, who has already started to hear the case, then to say, “I am going to stop”, whereupon the issue would go off to a disclosure judge. There are real issues here and I am far from convinced that the amendment, the purposes of which I entirely sympathise with, will result in fewer CMPs than the procedure that is in the Bill.

[Lord Faulks]

My Lords, I share with noble Lords who have proposed this amendment the desire that there should be public confidence in the system. However, like the noble Lord, Lord Pannick, I do not think that this is the solution. It is true of course that there are circumstances in which it is desirable, if not essential, that one judge should hear one part of the proceedings and another should hear another part, but the question of it being desirable, as it were, to have separate judges is a different matter. In fact, there is quite a strong argument that there should be greater continuity. The days of having one judge hearing preliminary issues and summonses and then the matter moving on to another judge have to some extent been changed in the Commercial Court, the Technology and Construction Court and in many cases in the county courts, so that if possible there is the same judge with a grip on the case right from the beginning.

On the face of it there is considerable advantage to having continuity unless, of course, the process is going to result in injustice to the litigant. We are talking in the context of CMPs with a claimant who may feel that injustice is being done to him or her by virtue of the possibility of closed material provisions. All I can say is that if I were in the position of that claimant, I would much prefer the judge who first heard and no doubt scrutinised the application under Clause 6 to conduct the case throughout in order to make sure that there is fairness, to show the flexibility we discussed in the last session of this Committee, and to deal with what might arise in accordance with the guidance given by the Bill in such a way as to provide justice. Although I wholly understand what motivates the amendment, I fear that it is not going to achieve what it is intended to.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Faulks and Lord Pannick

Monday 5th March 2012 Lords Chamber

[Lord Pannick]

My Lords, I support what the noble Lord, Lord Hart of Chilton, said, and I should like to add just two points. First, this amendment requires no expenditure of public funds. It is a constitutional amendment designed to ensure that a statement of the vital principle of independence is in the Bill. Independence is of central importance for the reasons that the noble Lord, Lord Hart, gave. Under the Bill we will have someone within the Ministry of Justice, a civil servant, who will perform the sensitive function of deciding when legal aid is allocated, even in relation to claims against government departments, including the justice ministry.

Secondly, I very much welcome Amendment 5, which has been tabled by the Minister. If noble Lords approve it, this amendment will require the director to produce an annual report which will be laid before Parliament. However, welcome as that amendment is, it does not address, far less rectify, the absence of any statement in the Bill about the independence of the director. Amendment 3 would meet the vital need for such a clear statement in the Bill.

[Lord Faulks]

My Lords, my name is also attached to the amendment, and I have very little to add to what has already been said. I am concerned too with the independence of the director, who will have considerable power over the allocation of what is left of legal aid. Perhaps I may give the House just two examples of where his or her role may be particularly important.

The provision for exceptional funding is still somewhat mysterious with its reference to the European convention and EU law. It is said to cater for quite a number of those cases where legal aid may still be given. How it is used is a matter of considerable importance. In deciding the best way of deploying exceptional funding it is very important that the director should be independent of the sort of influence which is potentially possible from the Lord Chancellor.

Secondly, Clause 4(4) states:

“The Lord Chancellor may not give directions or guidance about the carrying out of those functions in relation to individual cases”.

I am rather more concerned not so much with the individual case as with the type of cases. If the Lord Chancellor should take the view that certain areas of litigation are worrying the Government or should not be pursued, that is not covered by Clause 4(4). Although I am sure that this Lord Chancellor would not seek to exercise any inappropriate influence, it is extremely important that this new creature who will be at the centre of legal aid has independence firmly enshrined in the Bill. I support the amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Faulks and Lord Pannick

Tuesday 20th December 2011 Lords Chamber

[Lord Pannick]

My Lords, the amendment is in my name and those of the noble and learned Lord, Lord Woolf, and the noble Lords, Lord Faulks and Lord Hart of Chilton. It is an appropriate amendment with which to begin the Committee stage of this important Bill.

As the debate at Second Reading indicated, there is considerable concern about the contents of Part 1. There is widespread acceptance that in tough financial times legal aid must bear its share of the cuts in public expenditure and that the Government have to make difficult choices. However, there is widespread concern about the wisdom of the choices that are being made in Part 1 and whether it is appropriate to limit legal aid so extensively for those sections of the community that are most in need of advice and assistance to obtain the legal rights and benefits to which they are entitled.

The amendment seeks to focus this Committee’s debate on the contents of Part 1, and seeks to remedy a considerable defect in Clause 1. The defect is that the clause fails to mention that the objective of Part 1 must be to secure access to justice, to protect the needs of individuals and to do so in an effective manner. Clause 1 fails to recognise that our debates about the content of Part 1 should take place in the context that legal aid is a vital element in securing access to justice, and that without access to justice, the rights and duties which we spend time creating in this Parliament by legislation are reduced in value and effect.

The drafting of Amendment 1 is closely based on Section 4(1) of the Access to Justice Act 1999, which imposes duties on the Legal Services Commission. When the Bill transfers those responsibilities into the Lord Chancellor's Department, the primary objective of securing access to justice by effective means to meet needs must be retained in the Bill. That point was made in the report of your Lordships’ Constitution Committee, of which I am a member.

I very much hope that the Minister will be able to tell the Committee that he can accept the amendment. It is carefully drafted to recognise, as does Section 4(1) of the 1999 Act, that the duty to provide access to services in order to meet needs is not absolute. It is a duty defined by reference to the resources available. The drafting does not impose an independent duty which trumps the specific contents of Part 1. On the contrary, it says expressly,

“in accordance with this Part”.

I hope that the Minister will be able to accept the amendment as doing no damage whatever to the specific clauses which we shall be debating later in Committee. At the same time, the amendment ensures that the Bill recognises the vital principle which always has been and which should remain at the heart of our legal aid provisions: a commitment to providing access to justice. I beg to move.

[Lord Faulks]

My Lords, I support the amendment. As the noble Lord, Lord Pannick, explained, the current drafting is a change from the wording of the Access to Justice Act 1999 and the amendment makes it clear that the Lord Chancellor has an obligation to secure the access to legal services that meet the needs of the individual. That was recommended by the House of Lords Constitution Committee, although the amendment contains an important modification in that there is a qualification that the provision of legal aid must be on the basis of resources,

“made available in accordance with this Part”—

Part 1. In other words, there is no absolute requirement on the part of the Secretary of State to make legal aid available regardless of the financial situation.

I understand the purpose behind the Bill, which is, first, to save approximately £350 million as a contribution to reduction in expenditure generally and, secondly, to make some important changes to the litigation system as a whole. Although legal aid and the amendment are concerned with Part 1, it cannot be viewed in isolation, particularly not from Part 2, which brings about changes in current conditional fee arrangements. The need for those changes is clear. As recently as yesterday, a Court of Appeal judge observed at the end of the case that it was another case in which,

“the existence of a conditional fee agreement has made it practically impossible to obtain a settlement”.

He went on to observe that, ultimately, it is the public who pay for these things, either through higher premiums, or through the unwarranted expenditure of public resources.

Access to justice means satisfactory access not just for claimants but also for defendants. My reading of the purpose of some of the amendments put forward by the Front Bench of the party opposite is that they are intended substantially to maintain the status quo. This is somewhat surprising in view of the widespread acceptance of the undesirable effects of the current system, not least by Mr Jack Straw, former Secretary of State for Justice, in debates in the other place. I suggest that some of these amendments will actually impede access to justice.

There is an additional benefit from this amendment, apart from the clarity that I hope it provides. Our law is generally subject to the Human Rights Act—in particular, Article 6 of the convention, which provides for the right to a fair trial. How an individual state decides to reflect this principle in its provision of legal aid or some other form of assistance is, I suggest, very much for that state to decide, and it should be well within the so-called margin of appreciation—theoretically, at least—permitted by the courts in Strasbourg. There have been cases where in one context or another the lack of legal aid has been found to violate Article 6, although it might be said that the jurisprudence in this area lacks some coherence. However, this amendment should make such challenges far less likely to succeed in that there is a clear statement of the Lord Chancellor’s obligation and, contained within it, a sensible acknowledgement of the limits provided by available resources.

The Lord Chancellor said in an interview with the Guardian, published yesterday, that the Bill was concerned with,

“protection of fundamental rights of access to justice for critical issues that no civilised society can do without”.

I suspect that all in your Lordships’ House would agree with that aim. It is an aspiration that should inform our debates on the Bill in Committee in the weeks to come, and I suggest that this amendment is a good beginning.

Terrorism Prevention and Investigation Measures Bill

Debate between Lord Faulks and Lord Pannick

Tuesday 15th November 2011 Lords Chamber

[Lord Pannick]

I support the Government in their decision not to include the relocation power in the Bill. The speech of the noble Lord, Lord Hunt of Kings Heath, was notable for what he did not say about relocation powers. He did not mention the central feature of such a power, which makes it particularly intrusive and particularly damaging to the life of the individual who is the subject of it as well as to the lives of all members of their family. That is why such a measure should surely only be available if the Government conclude that it is truly necessary to protect national security. My understanding is that they do not, as the Minister made clear in Committee. I support them in that.

[Lord Faulks]

I agree with what the noble Lord, Lord Pannick, said. I understand the reasons behind this change, yet I have some sympathy for what the noble Lord, Lord Hunt of Kings Heath, said. It is reasonable to ask for reassurance about what will be a massive event with security implications. I am sure that the Minister will answer that query. I wonder if there is also an issue in relation to the transition from control orders to TPIMs at the end of this year, as the 28-day transitional period will fall over Christmas and new year. I would be grateful if the Minister would provide some reassurance that the police will be able to manage this transition.

Terrorism Prevention and Investigation Measures Bill

Debate between Lord Faulks and Lord Pannick

Wednesday 19th October 2011 Lords Chamber

[Lord Faulks]

I agree with what my noble friend Lord Macdonald and many other noble Lords said, that we can trust the judges. As the Bill currently reads, they have the task of scrutinising the imposition of measures on judicial review principles. Experience and the dicta of judges suggest that they will be particularly rigorous in this. This area is not generally considered one where Ministers are permitted quite the same sense of discretion as, say, on an issue of economics, but it is one where judges really can get in among the detail and form a view of a matter. They are only too conscious of the potential limitations of closed hearings and special advocates, and the potential risk that these present to those who are potentially the target of these measures.

On the amendment proposed by the noble and learned Lord, Lord Lloyd, I acknowledge his distinguished pedigree and the pedigree of the amendment, which I think goes back some time to the original control orders, but I respectfully suggest that it is inappropriate. I suggest that the obligation rests on the Home Secretary to protect the security of citizens. It rests upon her shoulders and it is a heavy burden. If one needs to find any emphasis in this from the Human Rights Act, Article 2 provides an obligation on the part of the public authority, the Government, to take measures to protect the life of citizens. Those measures will include appropriate measures to prevent outrages of this sort—that is of course what this Bill is concerned with. In this Bill she has to reasonably believe that an individual is involved in terrorist activity and reasonably consider that a TPIM and its appropriate measures are necessary. That is an exercise that she, with that heavy burden placed upon her, should perform.

As I understand it, this amendment is born out of an outright opposition to TPIMs and their predecessors, control orders. The courts have minutely examined these control orders in a number of cases. They have had various degrees of enthusiasm about them and about the closed hearings and the special advocates, but they said that they could operate unlawfully or they could operate satisfactorily—it would depend on the individual cases. However, they have survived what was a wholesale attack on them as a measure. It was not decided by any court that they were by definition contrary to the rule of law. It was acknowledged by judges in a number of cases that the security of the nation was a potent argument in favour of such orders.

It was not suggested in any of those judgments that it was better for the courts to have the decision in the way that this amendment suggests. I doubt that the courts would really relish such a task. Their job, traditionally, is to scrutinise, to examine the legality of the decision, but not to take upon themselves an essentially executive decision. I suggest that the Secretary of State—knowing, as she will, that her reasonable belief will be subjected to close scrutiny by a process which, correctly, places a heavy emphasis on the freedom of the individual—will exercise that power extremely responsibly, and I suggest that the balance should remain as it is in the Bill.

Finally, I will say something about the question of the standard of proof. If there is a fundamental shift in the way that power is to be exercised, as is suggested by the amendment, and the matter comes to the courts to decide, then it may be that the standard of proof should be the balance of probabilities. That is the test that has evolved over the years to decide civil matters generally. There have been recent decisions that suggest there is no shifting standard, but it remains the standard. It has developed pragmatically because there have to be decisions in civil cases to be distinguished from the higher standard in criminal cases.

However, as I understand the amendment proposed by the noble Lord, Lord Pannick, should the power remain with the Home Secretary, she should not have the decision based on reasonable belief but on balance of probabilities. I respectfully say that that balance of probability test may be appropriate where there is a judicial process to be undergone, but where we are talking about an executive decision, reasonable belief is much more appropriate than the process of coming to a conclusion on a 51:49 basis, which is far more suitable for a judicial determination other than the decision which at the moment would—and should—rest with the Secretary of State.

[Lord Pannick]

Under the Bill as it is at the moment, the judiciary are involved at the later stage. If they are to conduct a merits review, as the Government intend, they will apply the same test as to standard of proof as the Minister has applied in making the order. If the noble Lord accepts that balance of probabilities is suitable as a judicial test at the end of the process, surely the Secretary of State must apply the same test at the beginning of the process.

[Lord Faulks]

What I endeavoured to say was that the balance of probabilities would be appropriate were the courts to be taking that initial decision in place of the Secretary of State, which I understand to be the burden of the amendment put forward by the noble and learned Lord, whereas I understand that the suggestion made by the noble Lord, Lord Pannick, is that the initial stage and the decision to be taken by the Secretary of State should be on the balance of probabilities, and there I suggest that the current test is more suitable.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Faulks and Lord Pannick

Tuesday 8th February 2011 Lords Chamber

[Lord Pannick]

I have taken a number of interventions. This is Report, and I hope that the House will agree with me that it is appropriate that we proceed with this matter.

Even at this late stage, will the Minister and the Government please think again? They can make this process more efficient, but they should not abolish the inquiry, which is what they are in effect doing, as it serves a very valuable purpose.

[Lord Faulks]

My Lords, the noble and learned Lord, Lord Wallace of Tankerness, described this proposal as being culturally different from what had gone before. He is right in one sense, but I respectfully suggest that it is very much in line with the way in which a lot of procedures are developing. We are not obsessed by prolonged oral hearings with laborious cross-examination, dominated by lawyers—and here I must declare an interest as a member of that much maligned species. Rather, it is a sensible way of dealing with matters so that there can be full written representations followed by a public hearing. I think that the expression “public hearing” is an attractive one, as opposed to a “public inquiry”, which sounds rather murky and obscure from the point of view of the public, for whose benefit it is supposed to be.

I hope very much that such a hearing will be “lawyer light”. There is no need for the chair to be a lawyer; it might be better if they are not. What we require from the chair is someone who is capable of organising a hearing at which everyone who has a reasonable interest in a matter can have their interest properly heard and recorded. I accept the observation by the noble Lord, Lord Rooker, that there is no need to stick to strict court hours, and one hopes that the chair will allow a longer period as necessary.

We are talking about, I hope, an informal but thorough hearing. It allows what, as I understood it, the Opposition required—in effect, a day in court, an opportunity for people to say that they have said something as well as written something. This seems to be an extremely practical and fair solution, and I will support it.