Criminal Justice and Courts Bill

Debate between Lord Low of Dalston and Lord Lester of Herne Hill

Monday 27th October 2014 Lords Chamber

[Lord Low of Dalston (CB)]

My Lords, it is a pleasure to find myself speaking after the noble and learned Lord, Lord Hope—not for the first time. I am very worried about a particular aspect of the provisions we are considering today; namely, their impact on children. That is thrown into sharp relief by Clause 73, which requires that interveners pay the costs of their intervention in the circumstances outlined by the noble Lord, Lord Pannick, save for those which are “exceptional”.

We had a briefing here, which a number of noble Lords may have attended, from a number of children’s organisations representing children and manifesting their concern for the rights of children. The points that they made were extremely powerful, and I am glad to have the opportunity of raising them in this debate.

Following cuts to legal aid, children are increasingly forced to face court proceedings without a lawyer. In these circumstances, litigation brought by charities, NGOs and children’s rights organisations in the public interest is ever more important. Equally, in the new environment where they are increasingly faced by litigants in person, the courts increasingly value the contribution of third-party interveners providing expert advice to assist them on specific points of law and fact, including points on what is in the children’s best interests.

As the noble and learned Baroness, Lady Hale, said in a speech that she gave to the Public Law Project conference in October 2013:

“Once a matter is in court, the more important the subject, the more difficult the issues, the more help we need to try and get the right answer … interventions are enormously helpful”.

That is the testimony of a justice of the Supreme Court. As the noble and learned Lord, Lord Hope, pointed out, the noble and learned Baroness will not necessarily be deprived of such interventions in the Supreme Court, but I am sure that she was referring also to the value of interventions in lower courts.

Children and young people are disproportionately affected by the legal aid changes. They are often powerless to prevent the circumstances that give rise to the legal problems for which they seek resolution, such as homelessness, and they certainly cannot assert their rights without the help of a lawyer. They are either forced to fend for themselves as litigants in person without the skills to do so, have their problems inappropriately channelled to overstretched and inadequate complaints procedures, or have them go unresolved altogether.

The effect of the proposals about which we are talking today will be to inhibit legitimate challenge, limit judicial discretion to act in the public interest and shield public agencies from effective scrutiny. Despite what the Minister said earlier, it is difficult to escape the feeling that these provisions curtailing the scope of judicial review are animated by a belief that applications for judicial review are somehow vexatious. However, consider the sort of cases that we are talking about—cases where highly vulnerable children and young people seek protection from abuse and exploitation. Those affected include homeless children and young people; children who have been sexually exploited or abused—how salient is that today?—trafficked children; those with mental health problems and learning difficulties; children in care, care leavers and children affected by care proceedings; and young refugees and asylum seekers. The changes we are considering will inevitably have a chilling effect on charities and other organisations that seek to protect children’s rights through court action in the sort of cases I have mentioned. I urge noble Lords to support the amendments, which would negate these provisions, Clause 73 specifically.

[Lord Lester of Herne Hill]

My Lords, I wish to make a couple of points in addition in support of the amendment. My personal experience in cases has been that third-party interveners in judicial review proceedings perform a vital task in enabling the judicial review court, if it so wishes, to open its windows on to a wider range of considerations. We are not dealing with a dispute between two civil parties. We are dealing, as has been said, with judicial review designed in the public interest to resolve questions of public law. One such case has been implicitly referred to by the noble Lord, Lord Pannick—the case in which the High Commissioner for Refugees intervened in a difficult point about the proper construction of the refugee convention read with our other provisions. The court found it extremely valuable and it enabled the court, led by Lord Bingham, to give an authoritative ruling on what were novel issues about the refugee convention.

Another case was from Northern Ireland. One of the strange things about the Bill, which I hope the Minister will deal with in his reply, is that this provision does not apply to Northern Ireland or Scotland. The Northern Ireland Human Rights Commission had to struggle for some years to have a right of audience at all and to be able to make third-party interventions. Members of the House will remember that a couple of years ago, the Attorney-General for Northern Ireland wanted to commit Peter Hain for scandalising the judiciary by daring in his memoirs to criticise the Northern Ireland High Court judge. The Attorney-General applied to commit for contempt. I was instructed by the Northern Ireland Human Rights Commission to make a third-party intervention. I like to think that the result of that written submission is what caused the Attorney-General to drop the whole idea, as he did.

Unless I am completely wrong, we are now in the curious position that the Northern Ireland Human Rights Commission will be able, with its very limited budget, to be a third-party intervener without this costs effect, whereas the Equality and Human Rights Commission, for example, with its limited budget, will not be in the same position. That seems arbitrary and it will make it harder for our senior judiciary to be helped by third parties, which is the whole object of the third-party intervention.

Another example from the distant past concerned privacy in relation to the disclosure of patients’ medical information in the Court of Appeal. I seem to remember that a third-party intervention in that case was absolutely crucial. It is vital that small NGOs and ordinary citizens who have something to contribute, if the court decides that it wants to hear from them or read their written submissions, should be able to do so without the threat of costs orders being made against them.