Criminal Justice and Courts Bill
Lord Pannick Excerpts(9 years, 11 months ago)
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Lord Pannick
As an amendment to Motion B, at end insert “, but do propose the following amendment in lieu of those Amendments—”
Amendment in lieu
“( ) The duties of the court or tribunal under section 31(2A), (3B) and (3C) of the Senior Courts Act 1981, or section 16(3B), (3C) and (3D) of the Tribunals, Courts and Enforcement Act 2007, are subject to the discretion of the court or tribunal to act otherwise where it considers it in the public interest to do so in all the circumstances of the case.”
Lord Pannick (CB)
My Lords, I am very grateful to the Minister. His door has been open in recent weeks to discuss matters of concern and interest with noble Lords who are concerned about this clause.
On Report, your Lordships voted by a majority of 66 to amend this clause to maintain a degree of judicial discretion. The Government lost that vote because they lost the argument. Judicial review is of central importance to the rule of law. It is the means by which citizens seek to establish before an independent judge that public authorities, including Ministers, have acted unlawfully.
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.
Lord Pannick
As an amendment to Motion C, leave out from “House” to end and insert “do insist on its Amendments 103, 104, 105 and 106”.
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.
Lord Pannick
I would suggest that one should look up the average cost of a judicial review application and say that if the individual concerned is contributing less than, say, 10%, 15% or 20% of the costs, then that figure would not lead to any cost implications for that individual. However, I am not the one who is putting forward this proposal; it is surely for the Minister to come forward to the House and tell us what his proposal is. This House voted on Report that it was not satisfied with the Government’s approach. The Government now come forward and invite the House to agree with the other place by reference to this new proposal, and I simply suggest to the House that the Government’s proposal cannot be adequate unless your Lordships are told what the relevant figure is. I beg to move.
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.
Lord Pannick
As an amendment to Motion D, leave out from “House” to end and insert “do insist on its Amendment 107 to which the Commons have disagreed and do disagree with the Commons in their Amendments 107A, 107B, 107C, 107D and 107E in lieu thereof”.
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
Lord Pannick Excerpts(10 years ago)
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Lord Hunt of Wirral
I should stop now. However, I want to stress here that we are not talking about Fagin-type organised crime or Bill Sikes’s opportunist crime, but about the inflation of otherwise genuine claims. It has become a huge industry and insurers are now being forced to spend millions of pounds to tackle it. Organised gangs are at the heart of the increase in the number of these induced accidents. “Crash for cash” not only threatens motorists’ safety but also their pockets. It is estimated that it adds about £400 million to the annual cost of car insurance.
It has become an unfortunate fact that as a society we are faced with so many whiplash claims. It would be easy just to blame the claims farmers, and the House has heard my views on them before. However, despite a series of measures, often encouraged in this House, they continue to proliferate. They plague us with nuisance calls and texts about injury claims from accidents in which we have never been involved and that we have never heard of.
On the subject of nuisance calls, although I welcome the recent consultation by the Department for Culture, Media and Sport, I believe that the current threshold of substantial damage or distress is just too high and that the Information Commissioner’s Office needs to lower the test to ensure that it can tackle more effectively those who are abusing the system and bombarding the British public. I beg to move.
Lord Pannick (CB)
My Lords, this Bill has a purpose—a futile and anodyne purpose in the view of many of us who spoke at Second Reading, but a purpose none the less. Its purpose is to encourage heroism, volunteering and action taken for the benefit of the community. I respectfully suggest to the noble Lord, Lord Hunt, that his amendments are a long, long way away from the purpose of this Bill.
Lord Hunt of Wirral
It may assist the noble Lord if I explain that I was motivated by the speech of the noble and learned Lord, Lord Lloyd of Berwick, in particular, to think of amendments that would add substance to the Bill.
Lord Pannick
I am delighted to hear that because when the noble and learned Lord, Lord Lloyd, comes to move his proposal that Clause 2 should not stand part of the Bill, the noble Lord will no doubt express his wholehearted support for that proposition.
These amendments have no place in this Bill. They would fundamentally alter the scope and effect of the Bill, very much to its detriment. They would prohibit the courts from awarding damages in respect of personal injury in defined circumstances. The existing provisions of the Bill simply identify factors for the court to take into account in deciding whether there has been a breach of the duty of care.
I am also troubled by the detail of the amendments, and I am not reassured at all by what the noble Lord has just said. The amendments beg a large number of questions as to what it means for the defendant to “fund treatment”. At what level of care would that happen, and who is to assess the adequacy of such treatment? If the defendant’s insurer pays for my treatment as the victim of a car accident, would these amendments prevent me recovering compensation for pain and suffering as a result of the accident? That presumably amounts to damages,
“in respect of any personal injury”,
but the amendments seem to prohibit that.
I confess that I am puzzled by the amendments. If the defendant or their insurer has already funded adequate treatment, surely the claimant is going to have to give credit for that in seeking damages. I also do not understand why, if the noble Lord thinks that his amendments are such a good idea, they apply only in respect of,
“loss of function of 15% or less”.
For the Committee to give the amendments any encouragement would in my view, to quote Clause 3 of this curious Bill, not be,
“a generally responsible approach towards protecting the safety or other interests of others”.
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.
Lord Pannick
“Deterrent effect of potential liability
In section 1 of the Compensation Act 2006 (deterrent effect of potential liability), for the word “may” substitute “must”.”
Lord Pannick
My Lords, Amendment 2 seeks to give the Bill some coherent purpose and effect—not an easy task, as we debated at Second Reading.
Amendment 2 draws attention to an important legislative fact, which, surprisingly, is entirely ignored by the content of the Bill; that is, we already have on the statute book a provision which expressly addresses the very issues with which the Bill is concerned. The legislative provision is Section 1 of the Compensation Act 2006. It is a far more tightly and appropriately worded provision than the Bill, which, as we discussed at Second Reading, reads like an edition of the Valiant comic that I used to buy as a schoolboy.
Section 1 of the 2006 Act does the job. It has the title, “Deterrent effect of potential liability”, and states:
“A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might … prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or … discourage persons from undertaking functions in connection with a desirable activity”.
Amendment 2 recognises that there is a distinction between Section 1 of the 2006 Act and this Bill. The 2006 Act sets out factors that the judge may take into account. This Bill sets out factors that the judge must consider. If the Government are determined to change the law, all that is needed, even on their arguments, is to amend Section 1 of the 2006 Act so that “may” is replaced by “must”. That is what Amendment 2 would secure.
If Amendment 2 were accepted, we could and should remove Clauses 2 to 4 from the Bill. One of the many puzzling features of the Bill is that it entirely ignores Section 1 of the 2006 Act. It does not repeal Section 1 of the 2006 Act. It does not amend Section 1 of that Act. If, therefore, the Bill were to be enacted in its current form, the law would then state that under Section 1 of the 2006 Act judges “may” take account of the social benefit of the activity, and that under this legislation judges “must” take account of the social benefit of the activity, defined in different language.
According to the Lord Chancellor in the other place, the Bill is designed to send a message to potential volunteers and heroes. If Parliament were, through this Bill, to enact the legislative equivalent of a text message, the only message likely to be received is one of pure confusion. The man or woman thinking of volunteering or thinking of jumping into the lake to save the drowning victim is not—as the Lord Chancellor apparently believes —going to be comforted by their recollection of the contents of Halsbury’s Statutes of England. Once the Bill is enacted, the potential hero will pause while he or she consults leading counsel for advice on the implications of the fact that the statute book now contains both Section 1 of the 2006 Act and this new legislation.
Amendment 2 provides a simple and obvious solution to this problem, which I commend to the Committee. I normally agree with the noble Lord, Lord Beecham, but I cannot share his concern about Parliament in this context telling judges that they must take something into account. I do not share his concern because it will remain a matter for the judges what weight, if any, to give to the social benefit context in the circumstances of the particular case. Amendment 2 provides that the social benefit must be taken into account. It would do so in the very sensible context of the 2006 Act, which has worked very well since it was brought into force. Clauses 2 to 4 can then be removed, as the noble and learned Lord, Lord Lloyd of Berwick, will be proposing.
I hope that the Minister will respond favourably to this amendment, which is designed to be constructive. That is very difficult in the context of the Bill. If he is not able to accept this amendment, will he explain to the Committee whether it is really the Government’s intention to have on the statute book two differently worded sets of provisions that will be addressing precisely the same issue? I beg to move.
Lord Beecham
My Lords, I shall speak to Amendment 2, moved by the noble Lord, Lord Pannick, and to my Amendments 3, 5 and 9, which deal with the issue of judicial discretion in applying to any claim within the province of the Bill the provisions that the Bill sets out.
At Second Reading, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, averred that the change the Bill seeks to make in the provision of the Compensation Act 2006 that the court “may” take into account the factors that the Act spells out, to one which declares it now “must” take such matters into account will, in his words,
“actually make no difference whatever”.—[Official Report, 4/11/14; col. 1559.]
Perhaps that is a suitable epitaph for the whole of the Bill, it might be thought.
The noble Lord, Lord Pannick, from whose company I must unusually and regretfully depart on this occasion, seeks to replace the Compensation Act’s provision of “may” with this Bill’s “must”, presumably therefore reflecting the view of the noble and learned Lord, Lord Brown. The view that the two are the same, however, is not the Government’s view, as the Minister made clear at Second Reading, when he reminded the House that,
“the difference between ‘may’ and ‘must’ … caused the House to be divided on more than one occasion”.—[Official Report, 4/11/14; col. 1576.]
He also reminded us that there is a difference between the provisions in this Bill and the provisions in the Compensation Act.
To the extent that the obliteration of that difference could represent yet another and in this case, given its source, inadvertent legislative attempt to fetter judicial discretion—one of many such attempts made by this Government, some, alas, successfully—the Committee should resist that proposition. The JCHR in one of its more damning and dismissive, albeit characteristically elegantly phrased, reports published in recent years echoed its concerns about similar provisions in relation to judicial review in the Criminal Justice and Courts Bill. We have seen a succession of measures designed to fetter judicial discretion. I fear that, for all the intentions to the contrary, the noble Lord’s amendment might encourage that process. I therefore hope that, on this occasion, he will not object to my taking a different path, but it will be interesting to hear whether the Minister has changed his view since that expressed at Second Reading.
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.
Lord Pannick
My Lords, I have added my name to that of the noble and learned Lord, Lord Lloyd of Berwick, in opposing Clause 2 standing part of this Bill, and I agree with everything that he has said. At Second Reading the noble Lord, Lord Beecham, and the noble Baroness, Lady Browning, each quoted Shakespeare in their competing assessments of the value of Clause 2, and indeed of the whole of this Bill. At that stage I was unable to contribute at such a high literary level—I could offer only a quotation from Basil Fawlty.
Since then, I have received a valuable e-mail from Paul Mitchard QC of the Faculty of Law at the Chinese University of Hong Kong. He assures me, and I assure the Committee, that the Official Report on this Bill is being carefully studied in the special administrative region of the People’s Republic of China. Mr Mitchard has drawn my attention to a valuable quotation from the works of Shakespeare which is relevant to whether Clause 2 should stand part of this Bill. On being complimented on making a perceptive comment, Beatrice responds by emphasising the obvious nature of what she had said:
“I have a good eye, uncle; I can see a church by daylight”.
Most appropriately for our purposes, the quotation comes, of course, from “Much Ado About Nothing”. Given that a few moments ago the Minister praised the concise nature of this Bill, perhaps “little ado about nothing” is more appropriate.
Judges can already see a church by daylight. They already take account of beneficial action—responsibility, heroism—when they decide on potential liability for negligence or breach of statutory duty. Noble Lords discussed the case law relevant to this matter at Second Reading; I will not repeat it. The Lord Chancellor’s defence of Clause 2—as the noble and learned Lord, Lord Lloyd, has said—is not that Clause 2 will change the law. The Government have identified no cases which would have been decided differently had Clause 2 been in force. The point made by the Lord Chancellor—the point made by the Government—in support of Clause 2 is that people do not understand the existing law and therefore we, Parliament, should send a message to people who are worried that conduct beneficial to society may result in legal liability, even though those worries are entirely baseless. I do not know whether the Lord Chancellor is on Facebook or Twitter but they would be far more effective methods of communicating a message—if it is the intention of the Government to do so—than the legislative time being taken up by the Bill.
I hope that it is appropriate to say that I cannot put out of my mind—although I hope to do so by ventilating it in this Committee—an image of the Lord Chancellor and the noble Lord, Lord Faulks, as the parliamentary equivalent of the Bee Gees singing their hit, “I’ve Gotta Get a Message to You”. The problem is that there is really no point sending a message unless there is something of value to communicate and unless one has reason to think that it is going to be received. There is simply no evidence whatever to suggest that those thinking of performing beneficial acts or heroism are deterred by a misunderstanding of the protection that the law already offers them.
The Joint Committee on Human Rights, in its report published last week, helpfully summarised the position in relation to this crucial point. I draw the Committee’s attention to paragraph 2.23. It refers to the Explanatory Notes to the Bill, which,
“say that there is ‘some evidence’ that people are deterred from participating in socially useful activities due to worries about risk … or liability”.
The Explanatory Notes, as the Joint Committee points out, cite only an example of a survey conducted in 2006-07. The committee asked the Government if there were any other evidence upon which the Bill is based in relation to the suggested need for a message to be sent. This was the report’s conclusion at paragraph 2.26, which stated:
“We have considered carefully the strength of the evidence base showing that the specific risk of legal liability, as opposed to risk generally, is a reason why people do not volunteer, and we have found it weak. The evidence relied on by the Government as demonstrating a public perception that volunteering carried too great a risk of legal liability is almost entirely anecdotal, and we do not consider such evidence to be a sound basis for legislating”.
I respectfully agree. If the Government are bringing forward Clause 2 on the basis that there is a need to send a message, they need to present to this House some evidence to support that assertion. Anecdotal accounts are simply not good enough. I therefore share the view of the noble and learned Lord, Lord Lloyd of Berwick, that Clause 2 serves no useful purpose; it should not stand part of the Bill.
Lord Hodgson of Astley Abbotts
I have been listening carefully to the two speeches. The noble and learned Lord, Lord Lloyd of Berwick, referred to the interplay between this piece of legislation and the Compensation Act 2006. I had to note that after he said that he thought that the Compensation Act was sending a message, he added that the message may or may not have been received, which is part of the issue that we are tackling today—that the message has not been received. I listened carefully to the remarks of the noble Lord, Lord Pannick, and have read with equal care his article about this piece of legislation in last Thursday’s Times, which was headed “UK negligence law is already fit for heroes” and saying that we do not need this Bill. Its tone can only be described as uncompromising throughout.
Regrettably I was abroad on business during the week beginning 3 November and therefore was unable to participate in the Second Reading debate. The proposal of the noble and learned Lord, Lord Lloyd, and the noble Lord, Lord Pannick, that Clause 2, headed “Social action”, should not stand part of the Bill clearly rips the heart out of a large part of this measure and deserves a response. With respect to the noble Lord, Lord Pannick, I do not think that people’s fears are baseless.
Before I go any further, I need to declare an interest. First, I am not a lawyer. Hearing the interchanges I sometimes feel that I have joined a party to which I have not been properly invited. Secondly and more importantly, in late 2010 I was asked by the Government to chair a task force to look at those factors affecting the growth of the charitable and voluntary sector, especially among smaller charities and voluntary groups.
I was asked to look at three specific questions. What stopped people giving their time to volunteering, for example? What deterred them from giving their money? What stopped smaller charities and voluntary groups from growing in general terms? The task force’s report, entitled Unshackling Good Neighbours, was published in May 2011 and remains available for aficionados on the Cabinet Office website.
Only the first of those three tasks is relevant to our deliberations today. With the greatest respect to the noble Lord and noble and learned Lord, with the experience of that task force and the evidence that we received. I think that they have seen this issue too exclusively, through an over-narrow legal prism. I agree with their view that this problem of volunteer concern will not be solved by change to the law alone. There is no silver bullet and I would not claim that this Bill is one. The problem can be addressed by multiple bullets and this Bill provides one of them.
The noble Lord, Lord Pannick, is aware of the importance that I attach to the rule of law. I have had the pleasure of participating with him in debates on the Motion of the noble and learned Lord, Lord Woolf, about the importance of the rule of law abroad and Britain’s reputation. I have also had the pleasure of speaking with the noble Lord on the Justice and Security Bill. To maintain the rule of law, the law must command general respect. It must not become disconnected from the regulars of the saloon bar in the Dog and Duck. I fear that in this area it is becoming so disconnected. Some of the disconnection is direct and some is indirect, in that the law is being considered to support approaches that our fellow citizens think are at best foolish and at worst downright unhelpful.
Let me give an example of what is happening, which was provided to the task force. A young woman, an undergraduate at Oxford University, saw an advertisement in the paper asking for individuals to act as room curators at one of the city’s museums. Like many or perhaps most undergraduates she was short of money and anxious to earn some additional sums. The job required her to sit in the corner of a gallery, watching that visitors going by did not interfere or tamper with the exhibits, or steal them. When she applied for the job she was immediately told that it required her to have a Criminal Records Bureau check. She was not keen on what she found a disproportionately untrusting attitude.
At this point she was put in touch with the task force. I knew that CRB regulations check that a job applicant is suitable for “frequent and intensive” contact with children or vulnerable adults and could not see how this undergraduate sitting in the corner of a room in a museum would call that principle into question. So I asked her to write to the university authorities and ask them for the basis of their CRB requirement. The answer was that the museum authorities had consulted their solicitors and had been told that to cover all the bases, including generally, a failure to have CRB checks would increase the likelihood of the trustees being found liable if there were problems in any of the operations of the museum. In the event, the young woman did not take the job because she refused to have the CRB check and the museum would not amend its policy.
That example could be replicated thousands of times up and down the country. I could—but will not —bore the House with examples: the Punch and Judy show on Hastings pier; the Women’s Institute putting flowers on a Welsh railway station; or a retired doctor seeking to read a few hours a month to Alzheimer’s patients in Northumberland. Each case results in people being reluctant to get involved.
Lord Pannick
Perhaps I might point out to the noble Lord that the Minister assured the Committee in relation to the first group of amendments that the Bill would have no effect whatever on vicarious liability. Therefore, the museum’s approach—which does not sound very sensible—would not be affected in any way by the Bill.
Lord Hodgson of Astley Abbotts
I am not going to try to argue a fine legal point with the noble Lord but the fact of the matter is that the museum was advised that unless there were full and clear CRB checks for all individuals, it would be liable. This piece of legislation gives us an opportunity because in a case such as this, the museum,
“was acting for the benefit of society or any of its members”.
I have to say to the noble Lord, Lord Beecham, that I was disappointed with his remarks at Second Reading when he said:
“The irony is, of course, that banging on about a compensation culture is itself likely to create the very apprehension that the Bill purports to allay”.—[Official Report, 4/11/14; col. 1552.]
Regrettably, the apprehension is already very widespread. If he wishes to find out what is causing that apprehension, I invite him and other noble Lords to read the briefing sent by the Association of Personal Injury Lawyers, which describes the impact of the Bill as follows. It says that,
“those who ‘employ’ volunteers may be less rigorous in their risk assessments, thereby leaving those in their care more vulnerable to harm. An example is the chairman of a local football club where volunteers coach children. As a result of this Bill, the chairman may be tempted to cut corners in vetting the suitability of his volunteers”.
To suggest that those of us who support the Bill are somehow careless about our children’s future is unfair, unworthy and, indeed, outrageous.
I referred earlier to my support for the rule of law but I have an equally deep affection for the right of free association. It is on this right that our civil society is built. Many argue that in this screen-based age, our society is becoming more atomised and more self-centred. Whether or not this is true, I believe strongly that a vibrant civil society improves social well-being and social cohesion. All possible steps should be taken to avoid people being discouraged from getting involved.
I expect that the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Lloyd of Berwick, will argue that if a case with the characteristics I have described were to come to court, it would be thrown out. That is as may be. I am certainly not going to try to swap legal precedents with them as that would be a battle I would surely lose. But I ask the Committee to consider that for the noble Lord and the noble and learned Lord, a day in court is another day at the office, but for the defendant it is an entirely strange world —working to unfamiliar and not always understandable procedures, often taking quite a long time to come to court and incurring considerable cost and expense. It is a highly stressful experience for the layman or laywoman as well as for their families and work colleagues. Of course, if the defendant is a trustee of a charity which is not a CIO, he or she has unlimited liability.
In the background is the advice we were given at the time of the task force by an experienced litigation solicitor who explained that he would do everything he could to prevent his clerk going to court in what he called “volunteer liability” type cases because, as he put it, they are always complex and judgmental. Once you appear before a judge, and even more so before a judge and jury, the potential for unpleasant surprises increases significantly.
Earlier in the Bill, I said this was one of a series of bullets that needed to be fired to tackle this problem. So that the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Lloyd of Berwick, do not think that I am trying to attack the lawyers, I will give two brief examples of other bullets that need to be fired. One is the availability of insurance. The task force found that improving the clarity and comparability of insurance cover would have a major impact on encouraging volunteers. As the task force recommended, the Government have established a working party that includes representatives of the insurance industry and the voluntary sector to tackle this and other insurance problems. For the second bullet, I follow what the noble Lord, Lord Pannick, said earlier, when he wrote in his Times article, “Why not just issue a press release or pay for a newspaper advertisement?”. This raises the issue of myths. My task force was appalled at what we found, and we listed the 20 most extraordinary in our report. They include people worried that they could not put a plaster on a child’s cut; that goggles could not be worn in a swimming lesson; that they could not take photographs of their children at a school play, and that they could not offer meeting space in an office to a local community group. I hope that in parallel with implementing this Bill the Government will take active steps to ensure that where myths occur, they are duly busted.
To conclude, valuable steps have already been taken as regards the law in this respect. The Compensation Act was the subject of our debate this afternoon. The restrictions on contingent-fee legal work and after-the-event insurance are most welcome. We need, however, to continue to explore ways to encourage, or at least not discourage, our fellow citizens to get involved in civil society, and this Bill is important in that regard. I hope that the noble Lord will not divide the House tonight on the proposal that Clause 2 should stand part of the Bill and that my noble friend on the Front Bench will be robust in rejecting the Motion.
Lord Hunt of Wirral
My Lords, in drawing attention to Amendment 7, I am returning to the points I referred to earlier. The first part of the amendment reminds the Committee how society as a whole has become a victim of insurance fraud where organised criminals are now manufacturing situations in which innocent motorists are caused to collide with their vehicles in a manner which indicates negligence on the part of the innocent motorist. That is why I wanted to bring this amendment again to the attention of the House.
The second part of the amendment intends once again to remind your Lordships of the importance of non-monetary offers and, where they have been made by defendants, how they should be considered when the courts come to decide whether to award damages and the extent of the damages payable. I know that rehabilitation treatment is often offered to those injured in accidents but in many cases, because of the action of an intermediary, that treatment is often refused by the injured party and the period of suffering prolonged in an attempt to increase the award of damages in which that intermediary may be interested. If the courts were to be permitted to order that the treatment provided by a defendant and his representatives is a fair reward in compensation for the injury suffered, then the motivation of fraudsters to pursue “crash for cash” accidents should be reduced.
Lord Pannick
Before the noble Lord sits down, could I ask him whether the first part of Amendment 7 would not be covered by the existing law of causation and, indeed, by the law on contributory negligence?
Lord Hunt of Wirral
It is partly covered, but I think this makes it much clearer.
Earl Attlee
My Lords, I shall also speak to my Amendments 12 and 14. I have tabled these amendments on the basis that we will have to send back to another place something that actually works.
At Second Reading many noble Lords observed that, for a person to benefit from the heroism provision in Clause 4, they must act without regard to the person’s own safety or other interests. That would mean that if I intervened in an emergency, and I undertook a proper dynamic risk assessment and eliminated all avoidable and non-necessary risk to myself—and in doing so probably to anyone else—I would get no protection from the Bill. On the other hand, an imprudent rescuer would benefit from Clause 4, assuming for the moment that as drafted it changes the law.
Amendment 12 is my substantive amendment, which removes the offending words and changes the drafting to read: “to assist an individual in danger and without acting perversely”. The Committee will be aware that the noble Lord, Lord Aberdare, has an amendment that has a similar effect to mine, and I anticipate that he will go into greater detail about the problems with the need for the rescuer to act without regard to his own safety.
Amendment 14 defines what is meant by “acting perversely”. I fully accept that the courts might not need the benefit of this amendment and, if it or something similar does not find favour with the Committee, that will not be a surprise to me. I understand that my words, in the circumstances, would mean that the level of skill, knowledge, experience and training enjoyed by the rescuer would be taken into consideration by the courts—and in any case it already is.
I hope that by this stage of the Committee we will understand whether the Bill changes the law, but I myself am still not clear. I am sure that the noble Lord, Lord Pannick, will tell the Committee that my amendment would change the law and the effect of the Bill. If it does, I am sure that it can do so only very slightly. As the Committee knows perfectly well, and as I have always understood, the courts have never made an unhelpful judgment in that area of law. However, as I indicated at Second Reading, the fear of legal action or, as the Minister put it, an imperfect understanding of the law causes the mischief.
It would be very helpful if some noble and learned Lord or the Minister could describe to the Committee a situation in which the effect of my amendment would be to deny someone compensation for negligence when they would otherwise have secured it. I suspect that the Minister himself is struggling to determine whether the Bill is supposed to change the law or not. By now the Committee seems to have the view that the Bill makes no significant difference to the law apart from, possibly, Clause 3. However, if a first aid instructor could have the future SARAH Act confined to one PowerPoint slide, that could make a practical and beneficial difference. That is because, as the Minister pointed out during our debate on Amendment 2, the Bill has deliberately been designed to be comprehensible.
I suggest that the Committee cannot tolerate a provision in the Bill where an imprudent person enjoys greater protection than a person who has taken steps to avoid unnecessary risks. I am relaxed if the amendment in the name of the noble Lord, Lord Aberdare, finds greater favour with the Committee than my amendment, although his amendment may have the difficulty that it does not change the law at all. I would love to know if we were supposed to be changing the law or not.
Clause 4 is the most useful clause. I certainly have no entrenched position, but by Report we will need to have worked out what we can do to make this clause and the Bill do what they say on the tin. I beg to move.
Lord Pannick
My Lords, Amendment 10 is in my name and in the name of the noble Lord, Lord Beecham. It would remove the final words of Clause 4:
“and without regard to the person’s own safety or other interests”.
The inclusion of those words frustrates the purpose of Clause 4 for the reasons already given by the noble Earl, Lord Attlee. Those final words suggest that if I am thinking of acting heroically by jumping in the lake to save the drowning victim, Clause 4 will not protect me if I have regard to my own safety or other interests, perhaps by taking off my valuable watch before I jump in or, if we are to follow the Government’s reasoning as regards Clause 4, by consulting my solicitor. Surely the hero deserves protection whether he or she jumps in “without regard to” their own safety or with regard to their own safety. What matters is that they jump in to save the victim. Clause 4, as drafted, protects the instinctive hero but not the thoughtful hero, and that distinction is entirely unjustified.
Amendment 10, which again is designed to be constructive, would remove that arbitrary distinction from Clause 4. However, I cannot agree with the noble Earl, Lord Attlee, that the law of negligence in this area should be replaced by a test of perversity, which is a test far more favourable to the defendant. He asked for views from Members of the Committee as to whether his amendment would change the law; it undoubtedly would. I anticipate that we will take different views on the merits of that change, but to introduce a test of perversity would be a substantial change.
Earl Attlee
My Lords, would the noble Lord be able to illustrate to the Committee how that difference would work—a case where someone would be protected, and someone else would not? That would be very helpful to the Committee.
Lord Pannick
At the moment the court assesses whether in all the circumstances the defendant has acted with reasonable care, and the court will take account, as it will under the Bill, of whether in all the circumstances, including that of heroism, the defendant has acted reasonably. However, that is a very different test from a test of perversity. It will not help the Committee to try to identify particular factual circumstances, but I can tell the noble Earl that there is a very real difference between a test of reasonable care and a test of whether the defendant has acted perversely—in other words, has taken leave of his or her senses.
I have also indicated my objection to Clause 4 standing part of the Bill; that is part of this group of amendments. The objections to Clause 2 standing part of the Bill, which we debated earlier this afternoon, are equally applicable to Clause 4, and I will certainly not repeat all those points. However, there is an additional, specific reason why Clause 4 should not stand part of the Bill. The simple reason is that it adds absolutely nothing to Clause 2. I cannot envisage any case in which a person is acting heroically for the purposes of Clause 4 which is not also a case where that person is protected by Clause 2 as currently drafted. If you act heroically for the purposes of Clause 4 you act,
“for the benefit of society or any of its members”,
for the purposes of Clause 2. Does the Minister agree with that analysis and, if not, can he please give the Committee some explanation of the sort of circumstances that potentially come within Clause 4 that would nevertheless be outside Clause 2?
Social Action, Responsibility and Heroism Bill
Lord Pannick Excerpts(10 years ago)
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Lord Phillips of Sudbury (LD)
My Lords, I agree word for word with what the noble and learned Lord, Lord Lloyd of Berwick, said in moving his amendment, and indeed with what the noble Lord, Lord Beecham, has just said.
Lord Pannick (CB)
May I remind the noble Lord that there is a list of speakers in this debate?
Lord Pannick
There is a list of speakers and next on the list is the noble Baroness, Lady Browning, who is expecting to speak.
Lord Pannick (CB)
My Lords, unlike some of your Lordships, I am not disappointed by this Bill. When I see that the Lord Chancellor is bringing forward a legislative proposal, I worry about which valuable aspect of our legal system he is going to damage: judicial review, human rights and legal aid have all come under the cosh. It is, then, a pleasant surprise that the Lord Chancellor should be using valuable legislative time on a Bill which is so anodyne and pointless that the only appropriate response is a shrug of the shoulders or the raising of an eyebrow. Since neither of those gestures would be recorded in the Official Report, it is necessary to put one’s response into language.
The noble Lord, Lord Beecham, and the noble Baroness, Lady Browning, each quoted Shakespeare. I cannot compete with that, but the Bill puts me in mind of what Basil Fawlty says of his wife Sybil in the celebrated television programme, “Fawlty Towers”. I hope that noble Lords will excuse this unparliamentary language. He said: “She should be a contestant on ‘Mastermind’. Special subject: the bleedin’ obvious”. The Bill is a statement of the legally obvious. I find it very difficult to believe that, if enacted, it is going to make any difference whatever to any case that becomes before the courts. The Government’s own impact assessment of the Bill, says, at paragraph 17:
“Both the possible reduction in case volumes and the size of any compensation payments are unknown, but are likely to be small”.
The Minister is a very fine advocate but not even he can persuade me that the Bill is, as he suggested in his opening remarks this afternoon, significant.
In opening Second Reading in the House of Commons, the Lord Chancellor, Mr Grayling, said that the Bill,
“is about bringing back common sense”.—[Official Report, Commons, 21/7/14; col. 1187.]
Your Lordships have heard about common sense this afternoon; it was mentioned by the noble Baroness, Lady Hodgson, among others. As far as the courts are concerned, common sense never went away. Leading judgments have established that: they establish that where appropriate and on the facts of any particular case, the court gives weight to what this Bill describes as social action, responsibility and heroism.
Let me give two examples. Sixty years ago, in the case of Watt v Hertfordshire County Council—this is from 1954 and in Volume 1 of the Weekly Law Reports, page 835—Lord Justice Denning, as he then was, said in the Court of Appeal that in assessing claims of negligence, it was necessary for the court to balance the risk against the end to be achieved. He said:
“The saving of life or limb justifies taking considerable risk”.
More recently, there was the case of Tomlinson v Congleton Borough Council, in Volume 1 of the appeal cases 2004 at page 46, which was already mentioned by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. That case concerned a hearing before the Appellate Committee of your Lordships’ House of a claim by a young man seeking compensation after he had dived into a lake in a country park. He had ignored safety warnings and, tragically, broken his neck. The Appellate Committee dismissed his claim. Lord Hoffmann, speaking for the Appellate Committee, said at paragraph 34 that, in assessing a claim for negligence or a claim under the Occupiers’ Liability Act, the court must consider,
“not only the likelihood that someone may be injured and the serious- ness of the injury which may occur, but also the social value of the activity which gives rise to the risk and the cost of preventative measures. These factors have to be balanced against each other”.
In his Holdsworth Club lecture on 15 March 2013, the Master of the Rolls, Lord Dyson, posed the question: “Compensation Culture: Fact or Fantasy?”. We have heard a lot today about compensation cultures. Lord Dyson analysed the case law and summed up for fantasy. There is simply no compensation culture in English law. I ask the Minister which judgments would have been differently decided if the Bill were in force. Mr Grayling’s answer at Second Reading in the House of Commons to such a question was to say that,
“this is not just about what happens in the courts … The Bill is designed to send a powerful message”.—[Official Report, Commons, 21/7/14; col. 1189.]
So the Lord Chancellor’s concern was with perception, not reality, and the Minister's speech today was to very similar effect.
If we are to bring forward legislation to deal with perception, three questions need to be answered by the Government. First, where is the evidence that such a damaging perception exists? I entirely recognise the force of the points made by the noble Baroness, Lady Browning, about her experience. I recognise that, but if legislation is to be brought forward by the Government, I would hope for some thorough analysis of available evidence. Where is it?
Secondly, if we are concerned about perception, why is it that the Minister and the Government think that a message, if sent by Parliament, will be received? As your Lordships have heard, the Compensation Act 2006 already gives power to the courts to consider very similar factors to those set out in the Bill. I recognise that the Bill goes a stage further, in that it would oblige the court to have regard to those factors, whereas the earlier legislation only empowered the court to have regard to such factors, but they are very similar factors. In any event, the Bill rightly still leaves the judges with the power to decide what weight, if any, to give to those factors. I cannot understand why the Government think that the Bill will be more effective in communicating a message than the 2006 Act. It is simply unrealistic to think that someone who is considering volunteering—far less someone who is thinking of jumping into a lake to save someone in peril—will consult Halsbury’s Statutes and reflect on the difference between the 2006 Act and the Bill.
The third question for the Minister on perception is whether this is really the most effective means of correcting a false perception, if false it be. The time, effort and money spent on enacting and publicising this Bill would surely be better spent on press releases and newspaper advertisements. The Bill is a public relations exercise unconvincingly disguised as a prospective Act of Parliament. The Minister is renowned for his ability to present the Lord Chancellor’s proposals in this House in a manner that makes them sound almost plausible—and I stress “almost”. The noble Lord is in this respect, as in all respects, the man who the draftsman of the Bill had in mind. He is concerned only to act for the benefit of society. The noble Lord is responsible and, to all of us, he is heroic but not even his admirable qualities, as utilised in defence of the Bill, can make it remotely credible.
I share much of the analysis of the noble and learned Lord, Lord Lloyd of Berwick, but I know that I am going to disappoint him because like the noble Lord, Lord Beecham, and others, I regret that I will not be able to support the noble and learned Lord if he chooses to divide the House on whether this Bill should receive a Second Reading. I hope that the noble and learned Lord will not divide the House because that may send precisely the wrong message about what it thinks of the Bill. This is a Government Bill that has been through the House of Commons. Its contents are not objectionable; they are simply pointless. Such a Bill is not worthy of provoking a fundamental conflict between the two Houses of Parliament.
Criminal Justice and Courts Bill
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Lord Pannick
Lord Pannick (CB)
My Lords, this group of amendments is concerned with Clauses 74 and 75, and it relates to costs capping orders, or protective costs orders, as they were previously called. In a case that raises issues of public importance, the court has a power, before the case is heard, to set the maximum figure for the costs that a claimant will be required to pay should the claim not succeed. The object of such an order is to ensure that a claimant who raises an issue of public importance is not deterred from bringing the claim because of the risk of having to pay unquantified costs should the claim fail.
At the moment costs capping orders are a matter for the discretion of the court. They are rarely made, particularly in contexts other than environmental claims, which Clause 76 rightly recognises to raise special considerations because of an international convention, the Aarhus convention. The Minister, in correspondence, has helpfully referred to three or four cases a year of protective costs orders being made outside the environmental field. It is not a major problem. I have seen no evidence to suggest that the current exercise of the costs capping order power by the courts has caused any problems at all, other than the general problem that government departments would much prefer not to be the subject of judicial review applications at all.
Amendment 166 addresses a particular vice of Clause 74. Clause 74(3) provides that a costs capping order may be made,
“only if leave to apply for judicial review has been granted”,
but such a provision would defeat the very object of a costs capping order. If an applicant cannot seek and obtain a costs capping order in an appropriate case until leave to move for judicial review is granted, applicants will inevitably be deterred from bringing those judicial review proceedings in the public interest in the first place. They will be deterred because of the risk of having to pay an unquantified amount of costs at the permission hearing. I suggest to your Lordships that protective costs orders should remain available, if and only if the judge considers it appropriate in the circumstances of the individual case, prior to the grant of permission to move for judicial review. I beg to move.
Baroness Lister of Burtersett (Lab)
My Lords, I am sorry I missed the beginning of the noble Lord’s introduction of this amendment but I got called out. I simply want to speak on behalf of the Joint Committee on Human Rights. Our latest report says:
“We remain of the view expressed in our Report on judicial review that restricting the availability of costs-capping orders to cases in which permission has been granted would be a disincentive to meritorious public interest challenges being brought”—
that argument has been made—
“and we maintain our recommendation that the Bill be amended to remove this restriction”,
and that we explicitly support,
“Lord Pannick’s amendment … which would preserve the court’s current power to make a costs-capping order at any stage of judicial review proceedings, including before permission is granted”.
I hope that your Lordships’ House will feel able to support the amendment moved by the noble Lord, Lord Pannick.
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.
Lord Pannick
“Legal aid for judicial review
(1) The Lord Chancellor may not use the powers in section 2 or 9 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to impose further eligibility criteria for receipt of legal aid, or further to restrict the scope of legal aid, for judicial review proceedings (including applications for permission to apply for judicial review).
(2) Any statutory instrument made or to be made under the provisions referred to in subsection (1) and which otherwise conflicts with the restrictions set out in that subsection ceases to have effect in relation to legal aid for such proceedings.”
Lord Pannick
My Lords, Amendment 176 raises an issue of some constitutional importance. The proposed new clause would prevent the Lord Chancellor using the powers that he was granted under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or LASPO, to restrict eligibility for legal aid in judicial review proceedings. Your Lordships will recall that during the debates on LASPO Ministers repeatedly assured the House that the restrictions on legal aid contained in the LASPO legislation did not affect judicial review. Had the Bill made express provision restricting legal aid for judicial review, I think that Ministers would have found it difficult to secure the approval of the House for such provisions.
Instead of bringing forward proposals for restrictions on the availability of legal aid for judicial review by way of primary legislation so that such proposals could be fully scrutinised, the Lord Chancellor has limited legal aid in judicial review by subordinate legislation. Such subordinate legislation, as your Lordships well know, receives only limited scrutiny in this House. Detailed amendments cannot be tabled and debated, and the convention is that we very rarely indeed table, far less approve, a fatal Motion. To give one example of the problem, on 7 May your Lordships’ House debated a Motion of Regret that I had tabled in relation to the Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014.
Restrictions on legal aid for judicial review are far too important a matter for secondary legislation. If the Lord Chancellor wants to restrict the scope of legal aid in the context of judicial review, let him bring forward proposals in primary legislation. Those proposals can then be properly scrutinised and amended as appropriate. The purpose and effect of Amendment 176 is to secure that objective, and I commend it to the House.
Amendment 177 would introduce a further new clause to prevent the Lord Chancellor implementing a residence test for legal aid in judicial review proceedings. If I may, I will leave the noble Lord, Lord Beecham, to explain the purpose of that amendment, which I support. I beg to move.
Lord Beecham
Having been given that cue by the noble Lord, Lord Pannick, I cannot resist the temptation to rise now and speak to the amendments. Both of the amendments, as the noble Lord has said, relate to the issue of the availability or otherwise of legal aid in judicial review cases, and the noble Lord’s amendment deals with the broad problems implicit in the Secretary of State’s use of delegated powers to remove funding for applications for legal aid except where permission is granted or subject to an ex gratia scheme. In his characteristic way, the noble Lord has dealt comprehensively, not to say devastatingly, with that general issue.
Amendment 117 focuses exclusively on the Government’s attempt to deny legal aid for applications for judicial review by the imposition of a residence test. Noble Lords will be aware that an order under the provisions of LASPO to implement this approach was laid in the summer and was due to be debated under a Regret Motion in July, but that it was withdrawn in the light of the decision of the Divisional Court, with Sir Alan Moses—then Lord Justice Moses—presiding, which pronounced the provision unlawful.
The order would have imposed a prohibition on anyone over the age of 12 months—I repeat, 12 months—who had not been continuously resident in the UK for 12 months at some time from obtaining legal aid for judicial review cases. In its seventh report of 2013-14 the Joint Committee on Human Rights had criticised the Government’s proposals on a number of grounds, including their reliance on the possible availability of exceptional funding when, as we know, only 2% of applications for exceptional funding are successful. It took exception to the Government proceeding by way of secondary legislation, as the noble Lord has already mentioned, given the important human rights considerations urging that changes should be effected through primary legislation. Of course this Bill could have provided such a legislative vehicle if the Government had not chosen to use it in the way they have by tabling amendments on other, less fundamental, issues.
The Joint Committee was particularly exercised about the position of children, people with problems affecting their mental capacity and detainees seeking a remedy, for example, for abuse inflicted while in detention. It made the obvious point that the Government’s ostensible justification for denying legal aid to non-residents, on the grounds that they do not make a financial contribution to taxation, could not in any event apply to children. In its first report of the present Session, the committee joined the Children’s Commissioner in condemning the application of the residence test to children as a contravention of the UN Convention on the Rights of the Child. How long, one wonders, might it be before UKIP or the Tea Party tendency call for us to withdraw from the UN, on that sort of approach?
Some 30 highly reputable organisations have supplied a briefing which I commend to Members of your Lordships’ House, if you have not already seen it, setting out in clear terms 10 powerful objections to the proposed test. Interestingly, the first of those contained quotations from the noble Lord, Lord McNally, and the former Lord Chancellor, Ken Clarke, in debates on the then LASPO Bill. At that time the noble Lord, Lord McNally, affirmed that,
“the reforms establish an affordable system while ensuring that no one is denied … justice”.—[Official Report, 20/12/11; col. 1717.]
He went on to say that,
“there is no question as to what services might be funded; they are in the Bill for all to see”.—[Official Report, 5/3/12; col. 1569.]
Mr Clarke said that,
“we are continuing legal aid in all cases involving judicial review ... That applies to every kind of judicial review, because we do not think that the Government or a public body should be resisting a claim about abuse of their powers from a litigant who cannot get legal advice”.—[Official Report, Commons, 17/4/12; col. 227.]
Those remarks are of course entirely consistent with much of the debate that we have heard tonight and the amendments that have been carried already. They would, and should, apply to this proposal to restrict legal aid in cases involving a residence test, even to the extent of applying to children.
However, those assurances given at that time clearly carried no weight with the present Secretary of State; nor did the criticisms to which I have referred, although some of us are, if anything, astonished by their moderation, especially when set alongside the court judgment mentioned earlier and which is now under appeal. That judgment held that the residence test was both ultra vires, because it was not authorised by LASPO, and discriminatory, unlawful both at common law and under the Human Rights Act; but, significantly in the light of the threatened onslaught on the latter to garner votes from UKIP, that it was unlawful with or without the latter. Lord Justice Moses, as he then was, stated that,
“it is not possible to justify such discrimination in an area where all are equally subject to the law, resident or not, and equally entitled to its protection, resident or not … In the context of a discriminatory provision relating to legal assistance invoking public confidence”—
which, I note in passing, was an ostensible reason for the measure given by Ministers—
“amounts to little more than reliance on public prejudice”.
Sir Alan went on to identify a number of situations described in the large volume of evidence filed in the case which underlined the force of his concerns. Incidentally, it was a case of judicial review, which perhaps demonstrates the merits of that process. He then went on to refer to the extraordinary comments of the Lord Chancellor, who, during the case and pending judgment, went on record as saying,
“most right-minded people think it’s wrong that overseas nationals should ever have been able to use our legal aid fund anyway … And yes, you’ve guessed it. Another group of Left-wing lawyers has taken us to court”.
On this Sir Alan remarked that Mr Grayling was:
“Unrestrained by any courtesy to his opponents, or even by that customary caution to be expected while the court considers its judgment, and unmindful of the independent advocate's appreciation that it is usually more persuasive to attempt to kick the ball than your opponent”.
That is a perfect depiction, one might think, of the Lord Chancellor as the Luis Suarez of our justice system—which are my words, not Sir Alan’s. Sir Alan went on to quote a 40 year-old judgment of Lord Scarman:
“Every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection”.
It is shameful that while the Government are justifiably promoting the use of our courts and lawyers to wealthy foreigners and overseas corporations, they should seek to deny access to justice to those in dire need of it but without the means to procure it on the grounds that they have not been resident for 12 months. In a previous debate this afternoon I referred to the Minister who advised organisations like those who have supplied briefings for Members on these issues to “stick to their knitting”. I had hoped that Members of your Lordships’ House would not emulate those earlier knitters, the tricoteurs of the French Revolution, but would instead have sought to prevent the guillotine falling on some of the fundamental rights enshrined in and enforced by our system of justice. However, it is apparent that there would not be a majority to achieve that objective, given the late hour and the fact that most Members have now departed. In the circumstances, I will not be asking the House to divide on this issue, but I very much regret that the Government have set their face solidly against doing anything to retract an obnoxious and objectionable proposal which does them no credit whatever and, in fact, given his attitude, demeans the position of the Lord Chancellor.
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.
The Countess of Mar (CB)
I am sorry to remind the noble Lord, but this is Report and nobody should speak after the Minister except the person winding up.
Lord Pannick
I am very happy if the noble Lord wishes to clarify a matter. He does not; so be it. For my part, I remain troubled by this matter. I continue to think that it is important. I am not going to pursue it tonight but no doubt there will be other opportunities at some stage to do so. I beg leave to withdraw the amendment.
Lord Pannick
Lord Pannick
My Lords, your Lordships have heard today that Part 4 of the Bill contains a number of extraordinary provisions. Amendments 178 and 179, the final group of amendments for debate, provide an appropriate finale to our consideration of Part 4 because they address the quite extraordinary powers that are conferred on the Lord Chancellor by Clause 79.
If your Lordships take time to read Clause 79, you will see that the Lord Chancellor is given a power not merely to,
“make consequential … incidental, transitional, transitory or saving provision”,
to none of which I object. He is also given a power to make “supplementary” provisions by subordinate legislation. This power extends, so the Bill says, to amending, repealing or revoking legislation.
These are quite extraordinary powers, as the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Deben, explained to the House in Committee. I can see no justification whatever for conferring such powers on a Minister, far less in the sensitive context of judicial review, which, as your Lordships have heard this afternoon, is an essential element of the rule of law and the purpose of which—or at least one purpose of which—is to control the powers of Ministers. The Minister gave in Committee no explanation that I could understand as to why these extraordinary powers were required. I look forward to hearing his observations tonight. I beg to move.
Lord Deben
Happily, I am able to say now what I was going to say earlier, which is that I am one of those people who want to cut the amount of money that we have spent on legal aid. I take a very clear view that it is out of line with the arrangements in any other country that you might like to compare it with and that it is perfectly right for the Government to take those measures. However, that is why the Government should be a little concerned that people who are on their side have found unacceptable the mechanisms by which we have extended the powers of Ministers without due parliamentary control. This is the problem. Ministers should recognise that this is where the difficulty comes.
What we are saying is that the purpose is wholly acceptable but that to give Ministers powers of this kind is unacceptable and, as far as I can see, there is no good reason for doing it. That is the problem for the supporters of the Government and of their stance, which is why it would be helpful if the Lord Chancellor were to understand that we think that Parliament should have control in these very important areas, that we should not leave it to supplementary legislation even if it is of an affirmative kind and that—I am sure that my noble friend the Minister is entirely straightforward in his view about the connections between this and what was promised—when there is a fear that what has been promised has not been carried through, we should err on the side of being careful that Parliament should understand, accept and vote on those matters.
It is a matter not only of morality but of courtesy. I feel that we have not been given the kind of service which it is proper to ask of Ministers on this occasion. As one who supports these measures to a large extent, I am sorry that I shall be put in a position of not being able to support them simply by the mechanisms that have been presented. I suspect that quite a large number of my colleagues on this side of the House who have supported the Government would have been much happier in their support had the presentation been fundamentally different.
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
Lord Pannick Excerpts(10 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Pannick
Lord Pannick (CB)
My Lords, the amendment and some of the other amendments in this group are in my name, that of the noble and learned Lord, Lord Woolf, and those of the noble Lords, Lord Carlile of Berriew and Lord Beecham. Under this group of amendments, your Lordships turn to Part 4, with its provisions relating to judicial review. On Second Reading and in Committee, noble Lords from across the House expressed concern that the provisions in Part 4 would damage judicial review for no good reason. It is very disappointing that, since Committee in July, the Government have not come forward with any amendments of their own to address those concerns. I would be very surprised to be told that the Minister made that decision.
I invite your Lordships to bear two principles in mind when considering all of the Part 4 amendments. First, judicial review is a vital means by which central and local government and other public bodies can be held to account to ensure the legality of their actions before independent judges in public. Secondly, when proposals for amendment of judicial review are brought forward by Ministers—who are, after all, the main defendants in such litigation—the proposals require the most careful scrutiny by the House.
Clause 70 would prevent a judicial review application proceeding to a full hearing and any remedy—I emphasise, any remedy—at the full hearing if the defendant shows that it is highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred. I have three main objections to the clause.
First, it ignores the fact that one of the central purposes of judicial review is to identify unlawful conduct by the Government or other public bodies. If Ministers have applied the wrong rule, or they decided a matter without giving a person a fair hearing, the court will say so and it will give a declaration, even if, on the particular facts, the error made no difference. This surely serves the public interest because the risk of a public hearing before independent judges encourages high standards of administration, and once the court has given its judgment, Ministers and civil servants know that they must change their conduct for the future. That is precisely what they do. Clause 70 would undermine these valuable purposes of judicial review.
My second concern is that Clause 70 ignores the fact that even if the defect did make no difference on the facts of the individual’s case, the individual may have a personal reason to seek a declaration that there was unlawful conduct. Last year Lord Reed emphasised for the Supreme Court in the Osborn case that the law requires public bodies to adopt a fair procedure to ensure not only that the right conclusion is reached on the merits of the case but also that the subject of such a decision is not left with a sense of injustice.
My third and final concern about Clause 70 is that, far from speeding up judicial review procedures, it would require the court at the preliminary stage to conduct a detailed review of what would have happened if the defendant had acted differently. That would be time consuming, expensive and an extremely difficult exercise for the judge. It would promote satellite litigation.
Clause 70 would have very damaging effects—nor is it necessary. Judges have ample powers, which they use, to dismiss hopeless or abusive cases. To those of your Lordships who think that there is too much judicial review and that it takes too long, I say that Clause 70 is a blunt instrument to use in such a sensitive context. It would impose an absolute duty on the court. It would prevent the judge from considering whether, in the particular circumstances of the individual case, there is good reason to allow the claim to proceed or to grant a remedy such as a declaration.
Amendment 146, which I commend to the House, would maintain a judicial discretion to consider the circumstances of the individual case. That is surely appropriate in this context. Amendment 146 is to be read together with Amendments 147, 149, 151, 152 and 154, each of which substitutes judicial discretion for the judicial straitjacket which is proposed by Clause 70.
I have spoken briefly in moving this amendment because there is a great deal of business for the House to get through today on Part 4. I hope that that will not lead your Lordships to doubt the importance of this issue. I beg to move.
Lord Beecham (Lab)
My Lords, the last four years have seen the construction of major roadblocks on access to justice. Some 650,000 claimants a year, and their dependants, can no longer benefit from civil legal aid or advice, resulting in the collapse of law centres, extreme pressure on advice agencies and the expense and delays caused by litigants in person unable to receive legal advice in the preparation or presentation of their case. As we heard just last week, the family courts are often now clogged with litigants in person. The imposition of charges for employment tribunal claims have led to an 80% reduction in applications. Large cuts in fees for criminal legal aid threaten to reduce the chances of a fair trial.
However, as the noble Lord, Lord Pannick, has made clear, Part 4 of the Bill proposes even more insidious changes which would narrow the scope of judicial discretion in cases in which the lawfulness of decisions made by the Government themselves, or by public agencies, is challenged through the process of judicial review. As the Equality and Diversity Forum reminds us in its briefing, the Master of the Rolls, Lord Dyson, has asserted that,
“there is no principle more basic to our system of law than the maintenance of the rule of law itself and the constitutional protection afforded by judicial review”.
The Bill seeks deliberately to make it more difficult and potentially more expensive for citizens, either as individuals or whose interests may be represented by a charity, to seek a ruling from the courts as to whether decisions which might have far-reaching effects were properly made. I remind your Lordships that they already have first to obtain the leave of the court to bring such a case, and very often matters can be and are resolved at that stage.
Lord Pannick
I am grateful to all noble Lords who have spoken in this fascinating debate. Clause 70 has been defended by the noble Lords, Lord Horam and Lord Tebbit, and by the Minister, whom I thank for his very full response to these amendments, on the basis that there is too much judicial review, it takes too long and is too expensive, and that something needs to be done about it. However, as so many of your Lordships have explained this afternoon, that fails to recognise the threat that Clause 70 poses to the rule of law. As we have heard, that is not something, as the Minister was suggesting, that only lawyers are concerned about.
For my part, I am perfectly prepared to accept greater powers for the courts to throw out abusive cases. I am happy that we should speed up the legal process and make it less expensive. My concern is that Clause 70 is a blunt instrument. It would impose a duty on the judge to dismiss cases which raise issues of public and legal importance. That is why Amendment 146 proposes that Clause 70 should confer a discretion rather than impose a duty; the Minister repeatedly referred to a “fair balance”, and that is a fair balance.
As the noble and learned Lord, Lord Woolf, said this afternoon, if the judge is to do justice in this important and sensitive context, he or she must retain a discretion so that judges can continue to decide issues of great public importance. That is what is at stake here. Should an Act of Parliament say that the judge has no power to rule that a governmental exercise of power is unlawful? With all due respect to the Minister, that is not a modest reform. I invite your Lordships to retain judicial discretion. The Minister spoke of mutual respect between Parliament and the courts. I think that mutual respect is best maintained by writing judicial discretion into Clause 70.
I am sorry that the Minister should suggest today that this House performing its vital role of scrutiny of the Bill by retaining judicial discretion is somehow an inappropriate challenge to the elected House. It is nothing of the sort.
Lord Pannick
Amendment 146 is to be read together with Amendments 147, 149, 151, 152 and 154, each of which would substitute judicial discretion in Clause 70 for absolute judicial duties. I wish to test the opinion of the House.
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My Lords, I shall speak to Amendments 157 to 163. Clause 71 requires the provision of information about financial resources in judicial review claims. Clause 72 will regulate the use of information about financial resources on the assessment of costs in judicial reviews. The position is that the Government are seeking to impose duties on applicants for judicial review to provide information about financial resources when no such duties are imposed on claimants in other forms of civil litigation. I am aware of no general evidence of any mischief which these clauses are designed to remedy. They will have a severely inhibiting effect on judicial review applications.
If a claimant is able to demonstrate that they have a properly arguable case on the merits and they satisfy other requirements such as standing and time limits, they should not be further obstructed and deterred by complex requirements to disclose financial information. Even if there were a problem which needed to be addressed, I am concerned that Clauses 71 and 72 again, like Clause 70 on which the House has just expressed its view, are drafted in terms of judicial duties rather than conferring a discretion on the judge which would enable him or her to have regard to the circumstances of the individual case. Amendments 157, 158 and 160 would replace judicial duties with a judicial discretion. I beg to move.
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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“( ) The High Court and the Court of Appeal shall have a discretion whether to order an intervener to pay the costs of a relevant party to the proceedings, and shall have a discretion whether to order a relevant party to the proceedings to pay the intervener’s costs.”
Lord Pannick
My Lords, I shall speak also to Amendment 165. Your Lordships now turn to Clause 73, which concerns the costs of interveners in judicial review proceedings. Your Lordships will know that often in judicial review cases the court allows a person or body to intervene because they have knowledge or experience which may assist it in resolving the legal issues. Clause 73 states that interveners may not receive their costs other than in “exceptional circumstances”, and it adds—this is my concern—that, unless there are exceptional circumstances, an intervener must pay any costs that have been incurred by a party as a result of that intervention.
I cannot understand why such a provision is necessary or appropriate. The current legal position is clear and fair: the court has discretion over whether to order a party to the judicial review to pay the intervener’s costs or whether to order the intervener to pay costs to a party. Clause 73 is manifestly unfair. It will create a strong presumption that the intervener must pay costs, even if the intervention is helpful to the court in raising points that assist it in arriving at its substantive judgment. The Minister may say that the intervener can resist paying costs on the basis that there are “exceptional circumstances”, but there is nothing exceptional about the intervener assisting the court: it happens every week in judicial review cases. In any event, if there is a statutory presumption, rebuttable only by showing exceptional circumstances, that the intervener must pay the costs, public interest bodies will be far less likely to intervene. The courts will be denied assistance from those public interest bodies, which will be greatly to the public detriment and greatly to the detriment of the legal system, whether the intervention is from Liberty, the GMC, the UN High Commissioner for Refugees or, indeed, the Home Secretary—because a number of interventions in judicial review cases are made by government departments. None of this makes any sense whatever.
Amendment 164 would provide that it is a matter for the discretion of the court whether to order costs to be paid by or to an intervener. I commend that amendment to the House. I beg to move.
Lord Hope of Craighead (CB)
I support the amendment. It is a feature of Clause 73, as I am sure the Minister will have noticed, that it does not mention the Supreme Court—one should be thankful for small mercies—but it creates a very unbalanced situation. As the noble Lord, Lord Pannick, has explained, interventions are extremely helpful. Nobody has a right to intervene—courts at every level give permission if they are persuaded that the intervention would be of use to them—so that I cannot see that there is any compelling reason for turning interveners away. The court values them, and certainly, from the point of view of the Supreme Court, in my experience where we allow an intervention we derive benefit from it.
The regime that the clause seeks to create seems rather unbalanced. From the Supreme Court’s point of view, as we are a court of appeal, it would much rather, I am sure, that those who had a point to make were able to make it at the Court of Appeal level if not at the level of the High Court. While I welcome the absence of the Supreme Court from this clause, it adds to my feeling that there is something wrong about it. Given that the intervener has no right to intervene and that the courts are perfectly capable of controlling the volume of intervention and the time taken by interveners, which the Supreme Court does regularly, I cannot see any value in the reform, if one can call it that, that the clause seeks to bring about.
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
Lord Pannick Excerpts(10 years, 3 months ago)
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Lord Beecham (Lab)
My Lords, one of the most objectionable provisions in Part 4 of the Bill, which deals with judicial review, is embodied in Clauses 65 and 66, dealing with the provision of information about financial resources. Amendments 73G, 73H, 73M, 73Q, 73T, 73U and 73X in my name deal with this issue, alongside those in the previous group, which dealt with the procedural aspects covered in the Delegated Powers and Regulatory Reform Committee report and which we debated in somewhat curious fashion on Monday. Then, it will be recalled, we broke shortly before the dinner break business and the Minister had the unusual job of making a very short reply after the dinner break.
At Second Reading, the Minister described Part 4 as,
“a much needed rebalancing of the financial risk of bringing or driving a weak judicial review. We think it right that those who bring or choose to become involved in a judicial review should face their fair share of the financial risk that entails”.
The noble Lord went on in a minatory—or should I say “maxi-Tory”?—vein to say:
“Those who intervene in a case … can … add value … but we think it right that they should face the financial consequences of their decision to intervene”.—[Official Report, 30/6/14; col. 1542.]
This, as we will no doubt hear again today and heard at Second Reading, completely misrepresents the character of intervention, which, after all, requires permission from the court. It is very often provided in significant cases of public interest by reputable charitable organisations and equally often is found to be helpful to the parties and to the court. I cannot blame the Minister—the voice is the voice of the noble Lord, but the hands around the throat of judicial review are the hands of the Lord Chancellor.
Clause 65 requires an applicant for leave to apply for judicial review to disclose any information about the source, nature and extent of financial resources available, or likely to be available, to meet the costs of the proceedings. The nature of the information would, as we heard on Monday, be specified by rules of court effectively determined by the Lord Chancellor because, as was made clear on that occasion, the rules of court committee effectively has to implement what the Lord Chancellor desires to be done.
Amendment 73G is intended, on the assumption that Clause 65 stands part of the Bill, to provide for judicial discretion about the funding issue. I must concede that it is poorly drafted and the word “or” in the amendment should be replaced by “unless”.
Amendments 73H and 73M would remove the court’s duty to consider what information is, in the Government’s extraordinary formulation, “likely to be available”. “Who from?”, one wonders. Crowdfunding, charities, or repentant spouses of Russian businessmen deprived of tennis games with the Prime Minister? And what is meant by the test of likelihood? Come to that, what is meant by the test of availability?
Amendments 73Q and 73U would restore the court’s discretion in the matter of an order for a non-party to pay costs, while Amendment 73X would confine any surviving provision for the court to order costs to those who actually provide financial support rather than those likely or able to provide it, who may never have provided such financial support. It is of course interesting that no equivalent provision in relation to costs appears to apply to those who might benefit from—or even, I suppose, help to fund, directly or indirectly, the respondent to—an application, unless Clause 66(3) is intended to apply in such a case. Perhaps the noble Lord could confirm whether that is the position.
In general, however, the effect of Clause 65 is to threaten not only the applicant but those who might support an application with a liability for costs on the basis of guilt by association in the eyes of the Government—who might, of course, be the defendant. That is an improper approach. The whole object of the clause is clearly designed to provide what we have heard referred to in debates on the Bill thus far as a “chilling effect” on the judicial review process, and in particular on those who might wish to raise significant matters affecting the rule of law where, I repeat, the court has to grant permission in any event. It is a wholly improper concept and I hope that even at this stage the noble Lord will indicate that the Government are prepared to think again about it. If they are not, and we get to Report with the Bill unamended, serious consideration will have to be given as to what will happen thereafter, because the portents do not look good for the preservation of judicial review in this important respect. I beg to move.
Lord Pannick (CB)
My Lords, I have indicated my opposition to Clauses 65 and 66 standing part of the Bill and I agree with everything that has been said by the noble Lord, Lord Beecham. I do not understand why the Government are seeking to single out judicial review for such provisions, unlike any other form of civil litigation, unless the objective is to discourage judicial review claims. Where is the evidence of any mischief that these clauses are designed to remedy? Courts already have ample powers, which they exercise in appropriate cases, to require third parties to pay costs.
I am particularly concerned about the effect that these clauses will inevitably have because the reduction in legal aid already makes it extremely difficult for claimants to secure funding for judicial review on matters of public importance. If claimants are able to demonstrate that they have a properly arguable case on its merits, and if they satisfy other requirements such as standing and time limits, they should not be obstructed further by complex requirements—as these are—to disclose financial information.
In any event, Clause 65 is far too broadly drafted, referring as it does to financial resources “likely to be available” to the applicant. What does that mean? Does it cover the family and friends of the applicant, the law firm or law centre that is providing services pro bono and the charity that is supporting the claim? For all these reasons, I am concerned that Clauses 65 and 66 will impose a wholly unnecessary hurdle that will impede the delivery of justice in this important area of the law.
Lord Woolf (CB)
My Lords, first, I apologise to the House that I was a little late in arriving; I was giving evidence before the House’s Constitution Committee. I endorse what I heard of the speech made by the noble Lord, Lord Beecham, and I support my noble friend Lord Pannick in what he has said. The situation with regard to judicial review is that it is much more difficult for one to be funded in the way that ordinary civil actions are funded. In the case of ordinary civil actions, it is well established that the conditional fee arrangement, although it has been modified by recent amendments, is working reasonably well. Certainly as far as claimants are concerned, they are in a position to take on responsibilities which they could not otherwise take on.
However, in judicial review, it is very rare indeed that any damages or any form of financial benefit to the claimant are involved, so a claimant in that situation will have much greater difficulty in financing an application for judicial review than he would if he was bringing a claim for an injury in a motor accident, for example. This is just one more difficulty which is placed on the claimant, which makes it particularly important that the possible, very serious, unintended consequences of these provisions are looked at very carefully. It is very important that there should be access to justice, as that goes to the very heart of the rule of law. Access to justice should be easier in the case of judicial review than it is otherwise.
In India, for example, which is not somewhere you would normally look to for expeditious legal proceedings, the Supreme Court can respond to a postcard that is written to it. We have a much more complex process than that, but they thought it very important that the traditional jurisdiction of the Supreme Court of India, which is based on the very same provisions in our system as judicial review, should be available for the widest audience. Therefore they allow that to happen.
As far as I am concerned, one of the most important decisions I gave as a judge of first instance was on an application by the Child Poverty Action Group. I stressed in my judgment—which anybody can refer to—how important it was to extend the rights of audience and to take a generous view of standing. Otherwise, matters that affected the whole of society would not be examined by the courts. Each person entitled to supplementary benefit at that time was going to get only a very small sum of money, but it was a sum of money that was extremely important to them and made the difference to the whole of their existence. However, they could not finance the case themselves. If you take away legal aid in that sort of situation, and then add to the problem as this legislation does, that is something to worry about.
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“(2) The High Court and the Court of Appeal may not order costs to be paid as between an intervener and a relevant party to the proceedings unless it considers that there are exceptional circumstances which make it appropriate to do so.
(3) In determining whether there are exceptional circumstances for the purposes of subsection (2), the court must have regard to criteria specified in rules of court.”
Lord Pannick
My Lords, Amendment 74—indeed, all the amendments in this group—concern the costs of interveners in judicial review proceedings. Clause 67 is another ill considered and unnecessary provision that will damage the efficacy of judicial review. Noble Lords will know that often in judicial review proceedings the court allows a person or body to intervene because it has knowledge, experience or an interest that will assist the court in deciding the case. Clause 67 states that interveners may not receive their costs other than in exceptional circumstances. More worryingly, it adds that, unless there are exceptional circumstances, the intervener must pay any costs that have been incurred by a party as a result of the intervention, no matter how helpful the intervention may have been.
I simply cannot understand why such provisions are necessary or why they are appropriate. The current legal position is clear and fair: the court has discretion on whether to allow an intervention and, if so, whether to order a party to the judicial review to pay the intervener’s costs—which very rarely happens in my experience—or whether to order the intervener to pay costs to a party. Clause 67, by contrast, is manifestly unfair. It will create a strong presumption that the intervener must pay costs, even if the intervention is helpful to the court in raising points and drawing attention to material that assists the court in reaching its judgment.
Why does this matter? It matters for the obvious reason that public interest bodies such as Liberty, the GMC, the UN High Commissioner for Refugees, or indeed the Secretary of State himself or herself—a number of interventions in judicial review cases are made by government departments—will be far less likely to intervene if there is a strong presumption, as the clause will ensure, that they will pay the costs of the intervention and of the other parties. If the clause is enacted, the inevitable consequence is that the court will be denied the assistance that it currently receives from public interest bodies, to the detriment of public law in this country. This makes no sense whatever. Incidentally, I note that the clause does not apply in the Supreme Court, but interventions are as frequent and helpful in the High Court and in the Court of Appeal.
Amendment 74 would introduce some sense into the clause by providing that costs should be paid to or by an intervener only in exceptional circumstances. The better solution would be to remove Clause 67 from the Bill. There is no current difficulty. Judges have ample powers to decide whether to allow interventions and what the cost consequences should be. Clause 67 would deter valuable interventions. I beg to move.
The Chairman of Committees (Lord Sewel)
I have to inform the Committee that if Amendment 74 is agreed, I cannot call Amendments 74A to 74L inclusive by reason of pre-emption.
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—
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.
Lord Pannick
Lord Pannick
My Lords, this group of amendments is concerned with Clause 68, on costs capping orders—or protective costs orders, as they have previously been called. In a case that raises issues of public importance, the court has a power, before the case is heard, to set a maximum figure for costs that a claimant will be required to pay, should the claim not succeed. The object of such an order is to ensure that a claimant who raises an issue of public importance is not deterred from bringing the claim because of the risk of having to pay unquantified costs, should that claim fail.
At the moment, costs capping orders are a matter for the discretion of the court. They are rarely made; I am told that there have been fewer than 20 such orders in the past three years. Almost all of those are concerned with environmental claims, which Clause 70 recognises raise special considerations because of the international Aarhus convention. I am aware of no evidence that there have been substantial, or indeed any, difficulties in this area.
Amendment 75 would leave out Clause 68(3), which is particularly objectionable because it provides that a costs capping order may be made only if leave to apply for judicial review has already been granted. That would defeat much of the object of a costs capping order. If applicants cannot seek and obtain a costs capping order until leave to move for judicial review is granted, they are, inevitably, going to be deterred from bringing the judicial review proceedings at all because of the risk of having to pay an unquantified amount of costs at the permission hearing.
Amendment 76 would omit Clause 68(6)(c), which is also objectionable because it would require the court to be satisfied, before making a costs capping order, that, in the absence of the order, the applicant for judicial review would not merely withdraw the application or cease to participate in the proceedings, but also that it would be reasonable for them to do so. I am puzzled by that provision. I simply do not understand how a judge can be expected to assess the reasonableness of a decision by a claimant not to take a financial risk by bringing proceedings without a costs capping order. Whether you bring a claim without financial protection will depend on the legal advice you receive as to its prospects of success—a matter covered by legal professional privilege and so unknown to the judge—and the degree to which you are willing to take the financial risk of having to pay the costs, which is a very subjective matter. How will a judge be expected to apply Clause 68(3)?
Amendments 77 and 81 address a particular vice of the costs capping provisions. Clauses 68(8) to (11) and Clauses 69(3) to (5) would confer powers on the Secretary of State to define, by subordinate legislation, what factors the court should take into account when it decides whether proceedings are of public importance. These are not matters in which a Minister should be involved by making subordinate legislation, far less a Minister who is likely to be one of the potential defendants in the very cases which he would be seeking to regulate by making that subordinate legislation. If the Government wish to regulate this area, they should come forward with primary legislation which can be properly debated and scrutinised.
I have seen no evidence to suggest that the current exercise of the costs capping powers has caused any problems, other, of course, than the general problem that government departments would much prefer not to be the subject of judicial review applications. For these reasons, I oppose Clause 68 standing part of the Bill. I beg to move.
Lord Mackay of Clashfern
My Lords, I wonder whether I might invite the noble Lord to say what the present rules are and what are the powers under which this costs capping happens.
Lord Pannick
The present powers are that the court has a general discretion to decide at the beginning of the case on the application of a claimant for judicial review whether, and if so in what terms, it is appropriate to limit the exposure of the claimant to pay the defendant’s costs, should the claim fail. The court also has a power, which it sometimes exercises, to provide the other way, so that if the claimant were to succeed in the claim, the exposure of the defendant to pay the claimant’s costs should also be limited. This is a discretionary power, it is a broad power and it is exercised, as the noble and learned Lord would expect, according to the particular circumstances of each case.
Lord Mackay of Clashfern
Is the noble Lord able to say when that power was introduced? I am trying to work from my memory, and I do not remember. Of course, I am not saying that my memory is perfect. I am just wondering when it came in.
Lord Pannick
My understanding—I will be corrected by others if I am wrong—is that the court created such a power as an inherent aspect of its supervisory power over judicial review and other proceedings. I do not think that a specific rule was made, but I will be corrected if I am wrong on that.
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.
Lord Pannick
I thank the Minister. He has responded fully. The way in which he has presented the Government’s case throughout our deliberations on the Bill has been helpful and he is showing great patience in dealing with all the points that have been raised. I thank him for that.
Notwithstanding that, three essential points arise under Clauses 68 and 69, as with all the other parts of Part 4 that we debated on Monday and today. They are three issues that the Minister really does need to consider further. The first—and I should be grateful if the noble Lord could respond before Report—is: what is the mischief that Clauses 68 and 69 seek to address? How many of these costs-capping orders apply other than in the specialised field of environmental cases, which are dealt with separately under Clause 70 because of the convention that applies to them? His answer to that was, “Well, the Government are also concerned about the future”. Of course, that is right, but is there any basis for thinking that the way in which the judges have dealt with this issue and will continue to deal with it is inadequate in any sense? I do not understand what the mischief is.
The second point that the Minister needs to reflect on is whether any mischief is sufficiently substantial to justify confining judicial discretion in this area and conferring powers on the Lord Chancellor to regulate this area by subordinate legislation.
The third point that I ask the Minister to reflect on is what the consequences will be for access to justice. As he has heard, a number of noble Lords are concerned that the result will inevitably be detrimental.
I very much hope that over the summer the Minister will have the opportunity to sit down with the Lord Chancellor, Mr Grayling, perhaps on a beach somewhere —I know how dedicated the noble Lord is to his departmental responsibilities—and explain to him the difficulties that have been addressed on Clauses 68 and 69. If, as I hope, the Minister has the opportunity to do that, then perhaps together with his sun cream he will take with him a red pen to strike out the parts of these clauses that have been criticised. If he does not do so, I suspect that on Report this House will want carefully to consider doing precisely that for the Government. In the mean time, I beg leave to withdraw the amendment.
Lord Pannick
“Legal aid for judicial review
(1) The Lord Chancellor may not use the powers in section 2 or 9 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to alter the eligibility of any individual for legal aid for judicial review proceedings (including applications for permission to apply for judicial review).
(2) Any statutory instrument made under the provisions referred to in subsection (1) and which otherwise alters eligibility in the manner specified in subsection (1) ceases to have effect in relation to legal aid for such proceedings.”
Lord Pannick
My Lords, Amendment 82 would introduce a new clause to prevent the Lord Chancellor from using the powers which he was granted under the Legal Aid, Sentencing and Punishment of Offenders Act 2012—LASPO—to alter eligibility for legal aid in judicial review proceedings. Amendment 85 would ensure that the new clause comes into force on the enactment of the Bill and so would not be dependent on the discretion of the Lord Chancellor.
Your Lordships will recall that during the debates on LASPO—and they were detailed, anxious debates—Ministers repeatedly gave assurances that restrictions on legal aid in the Bill did not affect and restrict judicial review. Had the Bill contained such restrictions, I have no doubt that Ministers would have found it difficult to secure the approval of this House. Instead of bringing forward proposals for restrictions on the availability of legal aid for judicial review by way of primary legislation, so that they could be fully scrutinised, the Lord Chancellor has limited legal aid in judicial review by subordinate legislation. As your Lordships will know, such subordinate legislation receives only limited scrutiny in this House: amendments cannot be tabled and the convention is that we rarely table—far less approve—a fatal Motion, however foolish the regulations may be.
To give one example, your Lordships may recall that on 7 May this House debated a Motion of Regret, which I had tabled, in relation to the Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014. Those regulations made a fundamental change. They provided that the Lord Chancellor must not pay legal aid fees unless the court gives permission to bring judicial review proceedings, or, if the court neither refuses nor grants permission, the Lord Chancellor thinks it reasonable to pay legal aid remuneration. Eleven noble Lords spoke in support of the Motion of Regret. The Minister batted at both ends, bowled and fielded on his own with no support from any noble Lord.
Legal aid for judicial review is too important a matter for secondary legislation. If the Lord Chancellor wishes to reduce legal aid in the context of judicial review, let him bring forward proposals for primary legislation so that they can be properly scrutinised and fully debated. Amendments 82 and 85 would secure that objective and would nullify the regulations that we debated on 7 May.
I have also added my name to Amendment 82A, tabled by the noble Lord, Lord Beecham. I will say something very briefly about it. It addresses the residence regulations that would have confined legal aid to those resident in this country. In our debates today on Part 4 of the Bill, it should not go unrecorded that on 15 July the High Court declared those regulations to be an unlawful exercise of the powers conferred by the 2012 Act. That was because Parliament had identified those services qualifying for legal aid by reference to need, and the regulations adopted a different criterion. Indeed, under the regulations, many people with the greatest need and whose cases are properly arguable would be denied legal aid. The case is the Queen on the Application of Public Law Project v the Secretary of State for Justice, 15 July 2014.
At paragraph 60 of the judgment of Lord Justice Moses, with which Mr Justice Collins and Mr Justice Jay agreed, the court referred to the comments of the Secretary of State for Justice, Mr Grayling, in the Telegraph newspaper on 20 April. That was two weeks after the argument in the case had concluded in court, and before the judgment of the court was given. Mr Grayling, the Secretary of State, said that,
“yes, you’ve guessed it. Another group of Left-wing lawyers has taken us to court to try to stop the proposals”.
The High Court commented on this newspaper article at paragraph 60 of the judgment. Lord Justice Moses said that these comments by the Lord Chancellor were,
“unrestrained by any courtesy to his opponents, or even by that customary caution to be expected while the Court considers its judgement, and unmindful of the independent advocate’s appreciation that it is usually more persuasive to attempt to kick the ball than your opponent’s shins”.
At paragraph 83 of the judgment, the court added that the Lord Chancellor’s reliance in that case on “public confidence” in his defence,
“amounts to little more than reliance on public prejudice”.
This is a quite remarkable judicial rebuke for the Lord Chancellor, and I hope that he will reflect on what the court says.
This is the last group of amendments that we are considering on Part 4. As this Committee leaves this part, I suggest to noble Lords that that judgment of three judges in the High Court confirms the criticisms that this Committee has heard about the Lord Chancellor’s lack of understanding of the central role of judicial review in maintaining the rule of law, and it provides yet further reasons why this House will want to give the most careful scrutiny to Part 4 of the Bill on Report in October. I beg to move.
Lord Woolf
My Lords, I have added my name in support of the amendment that the noble Lord, Lord Pannick, has advanced so elegantly. It is perhaps appropriate that it should be considered this afternoon because it will be recalled that this morning I was gently—but I do not think appropriately—chided by the noble and learned Lord, Lord Mackay, for going too far in my comments about legal aid provision with regard to judicial review and the effect of the action being taken in that respect. I respectfully suggest that what we have just heard indicates that there is real reason to be concerned at the reduction of legal aid in respect of judicial review. The points made by the noble Lord, Lord Pannick, with regard to the shortcomings of regulations being used in respect of this area of legislation are very well founded.
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
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.
Lord Deben (Con)
My Lords, as the House may be aware, I am always unhappy if we have debates that become either a military-fest or a legal-fest—in other words, that the only people who discuss these things are lawyers. I suggest to my noble friend that we have already had sufficient evidence in Committee that there are in the Bill very serious matters over which the House has had very considerable disagreement. I suspect that he knows that Report stage will not be easy on a number of these issues, which reach way beyond party and which are about the nature of civil liberties and this country’s legal system. Therefore, I look at this particular proposal with a considerably jaundiced eye.
I want to say something that he may find inconvenient. There was a time when the Lord Chancellor was very manifestly not a political figure. Yes, he was appointed by the Government and he sat in the Cabinet, but he was seen very clearly as a legal figure. For reasons that I wholly disagree with and are all about a mistaken understanding of these things under the previous Government—this is not a criticism of him or present company—we now have a different situation.
Parts of the article read by the noble Lord, Lord Pannick, point to the position where the Lord Chancellor feels he is able to make statements that can be seen only in a context that is very strongly political. That means that the natural willingness of this House to accord to the Lord Chancellor a different kind of approach from that which one would to the Secretary of State for this or the Secretary of State for that is very much diminished.
Having debated this Bill in such detail and having shown so many moments when noble Lords of very different political views felt unhappy, we then come to this catch-all clause. My noble friend may explain that it does not really mean what it seems to mean. In that case, can we please write it so that it does seem to mean what it ought to mean? But if it does mean what it seems to mean, the Lord Chancellor and the Secretary of State can—depending on what the situation is—make changes subject to the most exiguous parliamentary control.
Having been a Secretary of State, I know very well that once you get a properly worded document and present it in accordance with the rules, it is quite difficult for it not to pass—let me put it as delicately as that. That same element is in this. I thought the noble and learned Lord, Lord Woolf, was more than polite when he reminded us that there was this “saving” bit, because it does not seem to me to be a “saving” bit at all—that it not what happens. Given the mechanisms of the two Houses, if such supplementary legislation is put properly and is not wrong, it will, in normal circumstances, pass.
If my noble friend cannot give the House the assurance that the wording means something wholly different from what it appears to mean, most of us would prefer not to have it at all. We would therefore want to support the noble and learned Lord, Lord Woolf, in his contention, if not now then on another occasion.
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
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Lord Hart of Chilton (Lab)
My Lords, I want to speak briefly. I was going to save myself until Report, but this afternoon I was provoked into speaking by the reference by the noble and learned Lord, Lord Woolf, to Andrew Congreve. Andrew Congreve is a partner of mine at Herbert Smith. We both went to the post office to get our TV licences when we heard that the fee was going to be increased. Andrew Congreve was provoked by the threat that his second TV licence was to be revoked by the BBC. That threat stirred him into action. He has not been very well recently. It is only to be applauded that he should be referred to this afternoon: he is now in the Law Reports and will appear in Hansard.
I wish to make a second point. The noble Lord, Lord Horam, referred to delay, as did the noble and learned Baroness, Lady Butler-Sloss. Steps are being taken at the moment to speed up the process of judicial review. Only six weeks are allowed now to bring the case—to make the application. That is a substantial cut to the period of time that was allowed before. The new planning courts, filled with judges who are experienced in this area, now sit to hear these cases. They come on very quickly. In my recent involvement, the six weeks application was made, the leave was granted quickly and the hearing took place a week ago. That was dealt with with enormous speed. If that is the process that is to be fulfilled in the future, a lot of the problems about delay will vanish.
Lord Pannick (CB)
My Lords, I apologise to the noble and learned Lord, Lord Woolf, for missing the opening minutes of his speech this afternoon—indeed, I apologise to all noble Lords—as I attempted unsuccessfully to break the world record for running here from the Supreme Court.
When proposals for amendment of judicial review are brought forward by the Government—who are, of course, the main defendant in such litigation—they require the most careful scrutiny to identify whether they are indeed in the public interest and whether there is any good reason for Parliament to intervene in an area that has previously—and rightly—been left to judicial discretion. Clause 64 seems to me to fail to meet those criteria.
I have three objections to Clause 64. First, it focuses on whether it is highly likely that the outcome for the applicant would not have been substantially different. I emphasise the words “for the applicant”. The clause fails to recognise that judicial review is not concerned just with the narrow interests of the applicant. Judicial review serves the public interest, as the Committee has heard, by exposing systematic breaches of legal requirements by defendants. The court’s judgment—often a declaration—tells the Administration that what has been done is unlawful. Changes are then made; unlawful practices stop. Clause 64 will constitute a major impediment to that vital function of judicial review.
My second objection to Clause 64 is that a remedy may be appropriate in the interests of the individual claimant even in cases where the legal wrong may have made no difference. Last year, Lord Reed emphasised in the Supreme Court in a case concerning the Parole Board—the Osborn case of 2013, in volume three of the Weekly Law Reports, at page 1020, paragraphs 67 to 68—that the law requires public bodies to adopt a fair procedure to ensure not just that the right conclusion is reached on the merits of the individual case but that the subject of such a decision is not left with a sense of injustice that a wrong approach has been adopted in their case. Again, Clause 64 would prevent judicial reviews going forward for that purpose.
My third objection to Clause 64 is that it would require the court at the preliminary stage to conduct a detailed review of what would have happened had circumstances been different. That will of itself be time-consuming and expensive, and will inevitably promote satellite litigation. The noble Lord, Lord Horam, expressed concern about delay, and we are all concerned about speeding up legal procedures. Several steps have been taken; the noble Lord, Lord Hart, referred to them a moment ago.
It is important to say to the noble Lord, Lord Horam, that Clause 64 simply does not address the objective of speeding up procedures; nor will it achieve any such objective. One could have shorter time limits and arrange for speedier, expedited or shorter hearings—those are all processes that are being adopted. The Fordham inquiry for the Bingham Centre has made a number of valuable proposals.
Clause 64 simply does not address the topic; it is a blunt weapon, if removing delay is its objective. It is, for reasons that I have sought to explain, counterproductive, because it will lead to longer hearings at the leave stage and more appeals on the grounds of what would have been the result had a different approach been adopted.
Your Lordships have heard that Clause 64 has been criticised by the Joint Committee on Human Rights. Your Lordships’ Constitution Committee referred to the concern expressed by the senior judiciary during consultation that Clause 64 may well lead to unlawful administrative action going unremedied. The Constitution Committee therefore advised this Committee and the House to consider whether Clause 64 risks undermining the rule of law. I think that Clause 64 will impede the effective exercise of judicial review, and will do so for no good reason. I very much hope that the Government will think again before Report.
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?
Criminal Justice and Courts Bill
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Lord Pannick (CB)
My Lords, I support everything that has been said by the noble Lord, Lord Lester of Herne Hill. I add simply one point. Amendment 7 would enact what was the practice prior to 1997, except of course that the review prior to that date was conducted by the Secretary of State and not by the independent Parole Board.
I am concerned that there is one reason and one reason only why this Government, and indeed their predecessor, removed the right to a review after 25 years and refuse to reinstate it. The reason is that, as a matter of law, such a review could not lawfully be undertaken by a Minister. The Strasbourg court has repeatedly stated that an independent person must make decisions on release. I would welcome the Minister’s comments on this, but I anticipate that the Secretary of State would be quite content for there to be a review by her or by her successors after 25 years but what she cannot accept is a review by an independent Parole Board. However, as the Strasbourg court has repeatedly stated—and it is surely right—decisions on release should be made by an independent person or body and not by a politician, however wise or experienced she may be.
Lord Lloyd of Berwick (CB)
My Lords, for the reasons that have already been given, I support the amendment and I do so all the more willingly because it is very similar to an amendment which I tabled two years ago when we were debating the LASPO Bill. A very significant difference between the two amendments is that I thought that the review should take place after 30 years rather than 25 years. My reason was that 30 years is one of the starting points for determining tariffs under Schedule 21. A defendant with a 30-year starting point and no mitigating or aggravating features would look forward to a review after 30 years but not before. It would not particularly make sense that a whole life prisoner should have a right of review after 25 years when one with a 30-year starting point would have to wait for 30 years, but that is a small detail.
The debate on my amendment took place on 9 February 2012, at col. 390. There were 12 speakers on that occasion. All, except the noble Lord, Lord McNally, supported the amendment. The only reason which the noble Lord gave for not supporting the amendment was that the public was not yet ready for it and, for that reason, the other place would not accept it and there was no point in it passing through this House. During my reply, he said that it would be easier to reach unanimity if we could arrange a joint meeting of both Houses. That is exactly what has now happened in the sense that we have the Joint Committee on Human Rights, which includes Members from the House of Commons and the House of Lords. So far as I know, there was no dissentient voice from any Member of the Commons. Perhaps we may put that objection on one side.
Until 2003, there was no doubt that exceptional progress in prison qualified a lifer serving a whole life tariff for a review after 25 years. Somehow, that right was overlooked when the 2003 Act was being pushed through Parliament. There was no evidence that I know of that the right of review after 25 years was causing resentment or was in any way unpopular with the public. Certainly, those serving these sentences had done nothing that I know of to forfeit the right which they then had. For my part, I cannot believe that anyone in government made a conscious decision to remove this right. It seems almost inconceivable that they would have done, but there we are. All we seek to do in this amendment is to restore to these prisoners a right which they have lost, so far as I am concerned, for no apparent reason.
There are other equally strong arguments to support the amendment. Prisoners serving tariffs of 20 or 30 years are entitled to a review after they have completed their tariffs. It gives them light at the end of the tunnel and provides them with a reason for making progress if they can. In those cases, the review is justified both on practical grounds and on humanitarian grounds. Will the Minister say why those reasons precisely do not apply to those serving whole life sentences? One might think that it should apply all the more so. It cannot be that they are being deprived of this right for some symbolic reason, but if that is the case I would be very glad to hear about it.
I could understand if the Minister said, like the noble Lord, Lord McNally, that this amendment would never be accepted at the other end of the corridor, but I would have no sympathy with him at all if he said that we should wait until the Supreme Court has decided the appeal in McLoughlin. The decision in Vinter is clear: a life prisoner is entitled to know at the start of his sentence what he has to do to qualify for a review after 25 years. It is equally clear that exceptional progress in prison would be a qualifying ground. But Section 30 of the 1997 Act provides that a prisoner can be released only on “compassionate grounds”. A prisoner who has earned his review by making exceptional progress is not being released on compassionate grounds in any ordinary sense of that term. Whatever the Supreme Court may say, we will need primary legislation to change the word “compassionate” or make clear what the word “compassionate” means. I would have thought that we would need a different word or an additional word. That will require primary legislation. I see no reason to wait until the Supreme Court has expressed a view. Indeed, if we had the primary legislation now, maybe there would be no need for a hearing at all. We should, in my view, grasp the nettle now. That is why I support the amendment.
Legal Systems: Rule of Law
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Lord Pannick (CB)
My Lords, it is a great pleasure to be part of a team of speakers with a forward line of three former Lords Chief Justice and two former Supreme Court justices that would win any legal World Cup.
This country is, as Shakespeare’s John of Gaunt says—it is still true—
“the envy of less happier lands”.
One of the reasons is our legal system, with its skilled and independent judges. There is a reason why Prime Ministers reach for a judge to investigate complex and sensitive public policy issues. They do so because judges and retired judges have a reputation for expertise, for integrity and for a determination to ensure that justice will be done—none more so than the noble and learned Baroness, Lady Butler-Sloss.
The legal system is important not just to the quality of our life but to our economic prosperity. The United Kingdom accounts for 7% of the global legal market. We are the leading global centre for the provision of international legal services. A paper issued by the Ministry for Justice in 2012 stated that the legal services sector in this country contributed £3.2 billion that year in exports, nearly three times more than a decade ago.
I declare an interest as a practising barrister. I make my modest contribution to that £3.2 billion in exports. In the past year, I have worn my wig and gown in the courts of Trinidad and Tobago, the British Virgin Islands, Bermuda and the Special Administrative Region of the People’s Republic of China—that is, Hong Kong. I have also travelled in the past 12 months to advise clients in Gibraltar, Zurich, Paris and Moscow. A number of my colleagues, either at the Bar or in solicitors’ firms, have more stamps in their passports.
We all find that, across all these geographical and cultural borders, the universal truth is that English law, English judges and English lawyers are regarded with enormous respect and admiration, none more so than the noble and learned Lord, Lord Woolf, who I thank for initiating this debate.
In applying the presumption of innocence, the principles of judicial review, the laws of contract and the protection of fundamental rights, the world still looks to London for guidance and legal services. Part of this is the historic residue of empire and the influence it commanded. In his epic account of the British Empire, Pax Britannica, James Morris tells how a hill tribe in India were involved in a dispute with their government about forest rights. Their elders were discovered sacrificing an animal to appease a distant but omnipotent deity:
“We know nothing of him”,
the elders announced,
“but that he is a good god, and that his name is the Judicial Committee of the Privy Council”.
Nowadays, the influence of London as a legal centre of excellence depends not on the chains of empire but on the quality of the product we produce. This influence and respect, hard won, are very easily lost.
I share the concerns that have already been expressed, particularly by the noble Lord, Lord Lester of Herne Hill, that the policies of the present Secretary of State for Justice, Chris Grayling, will damage the reputation, the influence and the financial success of our legal sector. If you undermine judicial review as an effective control on unlawful executive action, if you refuse to implement judgments of the European Court of Human Rights with which you disagree, if you reduce the scope of legal aid so that the most impoverished citizens of this country are denied effective access to the courts, and if you cut legal aid rates so that the brightest students—who are, of course, the judges and senior prosecutors of the future—cannot afford to work as barristers, and if in general you seek to administer our justice system on the cheapest basis possible, you will inevitably dilute its quality and pollute its reputation.
Criminal Justice and Courts Bill
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Lord Pannick (CB)
My Lords, Part 4 of the Bill contains proposals that have the purpose, and will have the effect, of impeding judicial review in performing its essential role of ensuring that public authorities, including Ministers, act lawfully. In opening this debate, the Minister suggested that judicial review began in the 1970s. That uses as much poetic licence as Philip Larkin’s suggestion—the noble Lord recalls the quote—that,
“Sexual intercourse began
In nineteen sixty-three …
Between the end of the ‘Chatterley’ ban
And the Beatles’ first LP”.
Judges have, of course, been examining the legality of government action since the 17th century.
I have been in practice at the Bar since 1980, representing claimants and government departments in hundreds of judicial review applications. During that time, each and every Government have shown signs, perhaps understandably, of being irritated from time to time by the power of the judiciary to identify and remedy unlawful conduct. When they calmed down, however, Ministers recognised the value of what is central to the rule of law. They also had in mind a more pragmatic consideration—that they would not be in power indefinitely and they would wish their successors to be subject to the same proper constraints of the rule of law.
The current Secretary of State for Justice, Mr Grayling, is different. He has brought forward legislative proposals to control judicial review, and helpfully explained why he was doing so in an article, which I commend to all noble Lords, in the Daily Mail on 6 September 2013. This is what he said:
“The professional campaigners of Britain … hire teams of lawyers who have turned”,
judicial review “into a lucrative industry”. Judicial review, he said, is a promotional tool for countless left-wing campaigners and therefore needs to be reformed. It is a tribute to the sense of humour of the noble Lord, Lord Faulks, that in opening this debate he emphasised the need to avoid legislating by reference to newspaper headlines.
The Lord Chancellor repeated the thrust of his complaints when he spoke to your Lordships’ Constitution Committee in March. I am aware of no evidence whatever to support his basis for legislating, and, more importantly, nor is the judiciary which hears these cases five days a week. The response of the senior judiciary to the Ministry of Justice’s consultation last November was that the judges had seen no,
“evidence of inappropriate use of judicial review as a campaigning tool, and it is not the experience of the senior judiciary that this is a common problem”.
That is not to dispute that judicial review procedures can be improved. The Fordham inquiry for the Bingham Centre for the Rule of Law made some very sensible suggestions earlier this year. What is objectionable is the wish of the Lord Chancellor to restrict the means by which the exercise of powers by himself and other Ministers are subject to review for their legality by independent judges.
Clause 64 is the first objectionable provision. It provides that courts and tribunals must refuse to allow the judicial review application to proceed to a full hearing if the defendant shows that it is,
“highly likely that the outcome for the applicant would not have been substantially different”.
If the case does proceed to a full hearing, the court must refuse to give any remedy to the applicant if that same test is satisfied. That is objectionable on constitutional grounds. The clause instructs judges to ignore unlawful conduct, and to do so in a context where the Government themselves are the main defendant. It is also objectionable because it fails to understand that judicial review is concerned not just with the narrow interests of the individual claimant had the results been different. Judicial review serves a public interest by exposing systematic breaches by public authorities of legal requirements. One of the most powerful remedies available to the court is the declaration, about which the noble and learned Lord, Lord Woolf, wrote the leading textbook. It tells the Government and the world that what has been done is unlawful. Ministers and civil servants know that they must change their conduct for the future, and they do. This is not a question of preventing judicial reviews on “minor technicalities”, as the Minister suggested in his opening remarks. Clause 64 is also very unwise for practical reasons, because it will require the court, at the preliminary stage, to conduct a detailed review of what would have happened. That would be time-consuming and expensive, and it would promote satellite litigation.
My second concern is Clause 67, which addresses the costs of interveners in judicial review proceedings. The Minister helpfully indicated that the Government may look favourably on amendments to the clause. Let me explain why that would be very wise. Very often in judicial review cases the court allows a person or body to intervene because it has knowledge or experience that may assist the court in deciding the case. However, Clause 67 says that interveners may not receive their costs for doing so, other than in “exceptional circumstances”. More troublingly, it says that, unless there are exceptional circumstances, the intervener must pay any costs incurred by a party as a result of the intervention. That is wholly unnecessary. The current position is clear and fair: the court has a complete discretion over whether to allow an intervener to appear, whether to order a party to pay the intervener’s costs, or whether to order the intervener to pay the costs. I am unaware of any evidence produced by the Secretary of State, or, indeed, anyone else, to suggest that there is a problem here. In any event, the provisions in the Bill are manifestly unfair. They will deter public interest bodies, whether it is Liberty, the GMC or the UN High Commissioner for Refugees, from intervening. They will not intervene if they are at risk of paying the costs other than in exceptional circumstances. The courts derive considerable assistance from these public interest bodies, and it will be greatly to the detriment of our law if this clause is enacted.
The third matter that causes me concern is Clauses 68 to 70 on protective costs orders—PCOs. In a case that raises issues of public interest and importance, the court has a power, before the case is heard, to set the maximum figure for the costs that a claimant will be required to pay should their claim not succeed. The object of a PCO is to ensure that a claimant who raises issues of public importance should not be deterred from bringing the claim by the risk of having to pay unquantified costs. At the moment, PCOs are a matter for the discretion of the court. The clauses will allow the grant of a PCO only when permission to bring a judicial review has already been granted, but the risks of having to pay the costs of a contested hearing for permission will deter these claims from being brought. That, I am afraid, is precisely the aim of the Secretary of State.
I suggest that it is also objectionable that Clause 69 would give the Secretary of State the power to decide what are “public interest” cases for these purposes and to define the factors which a court should take into account. These are simply not matters for a Minister by subordinate legislation—a Minister who is one of the potential defendants in the cases that he wants to regulate. Again, I have seen no evidence to suggest that the current exercise of these powers has caused any problems whatever, other than, of course, the general problem that government departments would rather not be the subject of a judicial review application at all.
Finally, I am puzzled by Clauses 65 and 66. Clause 65 requires the provision of information about financial resources in judicial review cases, and Clause 66 will regulate the use of information about financial resources on the assessment of costs in judicial reviews. But why single out judicial review for such provisions unlike any other form of civil litigation, and where is the evidence of any current difficulty?
All these clauses are designed to impede the effective exercise of judicial review, and, if enacted, that is precisely the effect that they will have. They all arise from a failure to understand, and indeed a complete lack of appreciation for, the very concept of judicial review as a means of holding government departments and other public bodies to account as to their legality in public before an independent judge. The judiciary has made it very clear in consultation that there is no practical need for these clauses and the Government have produced no evidence to justify them. The clauses have been criticised powerfully by the Joint Committee on Human Rights. The Government, as the main defendant in judicial review cases, are seeking to legislate in their own interests contrary to the public interest and contrary to the rule of law.
I will be putting down amendments to these clauses in Committee. I know that the concerns that I have expressed are shared around this House and outside it. I hope that the Minister and the Secretary of State are prepared for the detailed scrutiny which Part 4 requires and which it will undoubtedly receive.