Criminal Justice and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

Monday 27th October 2014 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

174A: Clause 76, leave out Clause 76 and insert the following new Clause—
“Capping of costs: environmental cases
(1) This section applies to judicial review proceedings which constitute or concern an Aarhus Convention claim.
(2) Sections 71, 72 and 73 shall not apply to proceedings to which this section applies.
(3) Notwithstanding anything in sections 74 and 75, in proceedings to which this section applies the court shall make a costs capping order in favour of an applicant for judicial review of its own motion or upon the application of any party in any case where the court considers that if a costs capping order is not made the proceedings are unlikely to be fair, equitable, timely and not prohibitively expensive as required by the Aarhus Convention.
(4) Rules of court may prescribe the terms upon which a costs capping order may be made in accordance with subsection (3) provided that such terms are calculated to ensure that the proceedings will be fair, equitable, timely and not prohibitively expensive.
(5) In determining whether proceedings are likely to be fair, equitable, timely and not prohibitively expensive, the court shall have regard to any relevant reports of the Compliance Committee established pursuant to the Aarhus Convention.”

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I moved amendments in these terms in Committee and so I will try to be brief, although the area they cover is quite complicated. Clause 76 is in the Bill because the Aarhus convention of 1998, which was ratified by this country in 2005, committed the United Kingdom to ensuring that environmental litigation will be,

“fair, equitable, timely and not prohibitively expensive”.

My amendments are founded on the principle that Parliament has a duty to ensure that this country acts in a way that is compliant with its international obligations.

Clause 76 recognises that the restrictions on costs capping orders as proposed in the Bill have the effect of making environmental litigation prohibitively expensive in any case. That is true ex hypothesi, because in a case where a judge would decide that a costs capping order is needed in order to enable an applicant to pursue the application, it follows that the application, if pursued without such an order, would be prohibitively expensive. It is for that reason that rules of court have already introduced rules limiting costs awards in Aarhus convention judicial review claims to relatively low fixed sums. Those sums are £5,000 against an individual applicant, £10,000 against a corporate applicant and £35,000 against a defendant.

However, the costs capping provisions are not the only provisions of the Bill that would put us in breach of the Aarhus convention: so would the provisions on disclosure of actual and likely financial resources and on the consequential orders for costs based on that information, as disclosed. Those provisions would have the effect that sources of support for judicial review applications would be choked off, making them prohibitively expensive for applicants without means, who would be left without the support of those people deterred from giving such support. The provisions on interveners and on costs capping would also have the effect of making environmental cases prohibitively expensive. Our amendments are therefore directed at broadening Clause 76 to exclude Clauses 71 and 72 on information about resources, and Clause 73 on interveners, for environmental cases as well as the costs capping provisions.

A further difficulty with Clause 76 is that it is permissive only and not mandatory, so that the Lord Chancellor is not required to make any regulations excluding the operation of the restrictions on costs capping. The provision is limited to ensuring that he is entitled to do so, if he chooses. Any such regulations that he chooses to make may also, under Clause 76(2), be as wide or as narrow as he chooses. Regrettably, this Lord Chancellor has given us little confidence that he is concerned to make challenges on judicial review less expensive.

Our amendments would also allow for costs capping orders in any case where the court considers that without such an order, the proceedings are unlikely to be,

“fair, equitable, timely and not prohibitively expensive”,

so as to bring the provisions squarely in line with our obligations under the convention. In our Amendment 174A, subsection (4) of the proposed new clause would introduce an objective test which would,

“prescribe … terms upon which a costs capping order may be made”,

to ensure compliance, once again by using the words of the convention. This is particularly important because the compliance committee established under the Aarhus convention has already found the United Kingdom to be non-compliant in a number of respects. The safe course is to ensure that the statute complies with the convention specifically and that there is a requirement that the regulations and rules of court do the same.

A further problem arises regarding definition. Clause 76(1) says that the definition of environmental cases is those cases which are environmental,

“in the Lord Chancellor’s opinion”.

Amendment 174B, which introduces a definition squarely based on the convention, is intended to address that difficulty and introduce an objective test. I beg to move.

[Lord Faulks]

My Lords, Clause 76 allows for judicial review claims on issues which relate entirely or partly to the environment to be excluded from the revised costs capping regime established by Clauses 74 and 75. This is to ensure continuing compliance with our obligations under the Aarhus convention and the various European directives which implement it. The requirements include that relevant procedures must not be prohibitively expensive. This is relevant to judicial reviews in certain environmental cases. Consequently, Clause 76 allows for environmental judicial reviews to be excluded from the approach in Clauses 74 and 75.

--- Later in debate ---

The intention behind Clause 76 and the regulations that will be made under it is to exclude relevant environmental cases from the codified regime created by Clauses 74 and 75 and to allow these cases to continue to be dealt with under the separate regime in the Civil Procedure Rules, ensuring compliance with the relevant international obligations. The new clauses would upset the careful balance between ensuring the proper measure of access to justice in environmental cases and ensuring that judicial review is not misused. On that basis, having listened carefully to the arguments advanced by the noble and learned Lord—I am sorry, my noble friend Lord Marks—I ask him to withdraw the amendment and agree to Clause 76 standing part of the Bill.

[Lord Marks of Henley-on-Thames]

My Lords, I am rather surprised that my noble friend regards my performance on this Bill as meriting promotion to “noble and learned Lord”.

We have both been brief. I rehearsed the arguments for the amendments in Committee and my noble friend rehearsed the arguments against. I will seek leave to withdraw the amendment but I say only this: I have a prediction that if these provisions are enacted in their present form, it will not be very long before the Compliance Committee established under the Aarhus convention draws attention to non-compliance by this country with its international obligations under Aarhus, not only in respect of Clauses 74 and 75 but in respect of Clauses 71 to 73 as well. I would regard that as a great pity because international obligations are a matter of great importance. With that observation, I beg leave to withdraw the amendment.

Amendment 174A withdrawn.