Criminal Justice and Courts Bill
Lord Pannick Excerpts(11 years, 1 month ago)
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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(11 years, 4 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.
Lord Pannick
“(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
Lord Pannick Excerpts(11 years, 4 months ago)
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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.
Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014
Lord Pannick Excerpts(11 years, 7 months ago)
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Lord Pannick
That this House regrets that the Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014 make the duty of the Lord Chancellor to provide legal aid in judicial review cases dependent on the court granting permission to proceed (SI 2014/ 607).
Relevant document: 37th Report from the Secondary Legislation Scrutiny Committee
Lord Pannick (CB)
My Lords, over the past 40 years politicians of all Governments have complained when they lost judicial reviews. However, when they calmed down they recognised that the principles created by the courts in this area of the law are,
“fundamental features of a constitutional democracy”.
I quote from De Smith’s Judicial Review, edited by the noble and learned Lord, Lord Woolf, Professor Jowell, and others. Lord Chancellors of the stature of the noble and learned Lords, Lord Mackay of Clashfern and Lord Irvine of Lairg, saw it as part of their responsibility to remind their ministerial colleagues of the importance and the political neutrality of judicial review. They understood that Ministers may be irritated by these cases while in government, but they welcome such controls when they lose power and move into opposition. The Lord Chancellor in this Administration, Chris Grayling, is by contrast a politician with a short-term mission. He wrote in the Telegraph last month that he is determined to prevent,
“judicial reviews, instigated by pressure groups, designed to force the Government to change its mind over properly taken decisions by democratically elected politicians”.
The legal aid regulations we are debating tonight are one example of many where the changes which this Lord Chancellor is imposing are far more damaging than any disease which they purport to treat. Legal aid is paid to a claimant’s lawyers only if the claimant satisfies a means test and shows that the claim has legal merit. Judicial review, unlike almost all other forms of legal proceedings, can be commenced only with the permission of a judge. These new regulations, which came into force on 22 April, make the following change. 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.
The problem is that often the court does not grant permission to bring a judicial review for reasons other than the weakness of the claim. The filing of a judicial review claim concentrates the mind of the public authority, which often responds to the bringing of the claim by reviewing the impugned decision and by giving the litigant what he or she seeks: namely, recognition that an error was made or fresh consideration of the matter. Therefore, by the time the judge looks at the application, it is unnecessary, and may be inappropriate, for the case to continue.
These regulations wrongly assume that cases in which permission to bring judicial review is not granted are unmeritorious. Often the opposite is true. It is precisely because a claim has substantial merit that the public authority speedily addresses the grievance. The problem is that, if lawyers know that they have no right to be paid in such cases, even at the low—scandalously low—rates currently thought acceptable by the Lord Chancellor, the inevitable result will be that clients with a strong claim will find it much more difficult to find competent representation. Nor is it any solace that the Lord Chancellor has discretion to make a payment; that applies only if the judicial review application is not dismissed and some of these applications will be dismissed because the case is now moot. In any event, nobody can proceed on the basis of a hope that the Lord Chancellor, in his discretion, may choose to make a payment. We have all seen recently that the discretionary “exceptional circumstances” category of funding for legal aid applies in theory but rarely, if ever, in practice.
Lord Faulks
I hope I have made it clear that I would take back the observations that were made during the course of the debate. I will, of course, add to that the comments made by my noble friend just now.
Lord Pannick
My Lords, the poor quality of these regulations has provoked a debate of the highest quality. I thank all noble Lords who have participated in identifying defects in these regulations. I also thank very sincerely the Minister, who has put the Government’s case without any support whatever from the Benches behind him. It is no reflection on the noble Lord’s very considerable powers of advocacy to say that the arguments he has advanced tonight in support of the Government’s position are, to use a phrase commended during the debate, wholly without merit.
The Minister emphasised that the Government are not abolishing judicial review. We must be thankful for small mercies. It is no defence to a charge of criminal damage for the defendant to say, “I have not committed a murder”. The Minister says—and who could disagree?—that hopeless cases should not be funded by judicial review. Of course they should not, but the Minister will appreciate that the thrust of this debate is that the test imposed by these regulations does not distinguish between hopeless and other cases, as would be the case if the judge were to have a power to determine for the purposes of legal aid whether the case is hopeless. I am pleased that the noble Lord has given a commitment to ask the Lord Chancellor to reflect on what has been said tonight. I hope that the Minister will be able privately to add his concerns to those expressed in the House.
I have one other point: your Lordships will have a proper opportunity in the next Session for detailed scrutiny of the Lord Chancellor’s attempts to neuter judicial review in the most regrettable proposals in the Criminal Justice and Courts Bill. I am confident that, as the noble Lord, Lord Cormack, said of these regulations in his powerful speech tonight, there will be in the next Session a coalition of Peers from all sides of the House who will express their concern about the Lord Chancellor’s proposals and, I hope and expect, in relation to that Bill will demonstrate their commitment to the rule of law in the Division Lobbies. Like so many of your Lordships and so many outside this House, I regret these regulations. I beg leave to withdraw the Motion.
Anti-social Behaviour, Crime and Policing Bill
Lord Pannick Excerpts(11 years, 9 months ago)
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Lord Pannick
As an Amendment to Motion A, leave out from “House” to end and insert “do insist on its Amendment 112”
Lord Pannick (CB)
My Lords, on Report your Lordships’ House supported an amendment to include in this Bill the criteria for the payment of compensation for a miscarriage of justice based on the judgment of the noble and learned Lord, Lord Phillips of Worth Matravers, speaking for the majority of the Supreme Court in the Adams case. The noble and learned Lord, Lord Phillips, himself spoke in favour of my Amendment 112 on Report. He has asked me to express his regret that he is unable to be in his place today to support Motion A1 because he is abroad.
We are concerned today with cases where an applicant has been wrongly convicted of a criminal offence. In many of these cases, he or she spent years in prison before the Court of Appeal overturned that conviction. Compensation is not paid, and rightly so, simply because the judge made an error of law or there was some other technical basis for the successful appeal to the Court of Appeal. The applicant must show, on the test stated by the Supreme Court—the test approved by your Lordships’ House—that a new fact has emerged that so undermines the prosecution evidence that no conviction could possibly be based on it. That is a very difficult test to satisfy, and rightly so.
I continue to believe that the test of the noble and learned Lord, Lord Phillips, for the Supreme Court is preferable to the Government’s approach, approved by the other place, and that the amendment approved by the other place, with great respect to them, is wrong in principle and would have very damaging consequences. That was true of the original criteria set out in this Bill and rejected by your Lordships’ House on Report—the criteria that the applicant must prove beyond a reasonable doubt that he or she is innocent of the offence—and it remains true of the variation introduced by the Government in the other place, that the applicant must prove beyond a reasonable doubt that he or she did not commit the offence. The Minister has very fairly acknowledged in his opening remarks that there is no substantive difference between proof that you are innocent and proof that you did not commit the offence.
I will first seek to explain why I say that the Government’s approach will have very damaging consequences. The Minister has suggested today that the judgment of the Court of Appeal will be the only evidence which the Secretary of State needs to see in order to form a judgment on whether the applicant did or did not commit the offence. However, the Court of Appeal very rarely says whether it thinks that a defendant has proved that he or she did not commit the crime. That is not the role of the Court of Appeal. It focuses on whether a new or newly discovered fact fatally undermines the case that is presented by the prosecution. The test of the noble and learned Lord, Lord Phillips, is consistent with what the Court of Appeal does. It has never been the role of Ministers in our jurisdiction—rightly so—to pronounce on whether a person has committed a crime.
The cases in which compensation is claimed for a miscarriage of justice will often be the most controversial and sensitive. When an appeal has been allowed in the Court of Appeal on the basis that the prosecution case has been fatally undermined by a new or newly discovered fact, and when the defendant is then released from prison, often many years after their wrongful conviction, it is very unwise for legislation to state that it is then for the Secretary of State to pronounce on whether she thinks that the defendant has proved that they did not commit the crime. I can think of nothing more likely to keep open the sore of a regrettable miscarriage of justice, and nothing more likely to involve a politician in controversial matters of criminal responsibility.
The Minister suggested that the Government’s approach would promote certainty in the law. I have to say to him that, far from promoting certainty, the Government’s approach will inevitably be a recipe for complex, expensive and highly acrimonious litigation. The Minister said that there had been a few cases since the Adams judgment, which, he said, itself suggested that the Adams criteria were uncertain. However, as the Minister recognised, none of those cases has succeeded, and he well knows that members of our profession are quite capable of litigating any statutory definition. I therefore agree with the Government that the Bill should define the criteria for receipt of compensation for miscarriages of justice but I cannot agree that the Government’s wording, approved by the other place, is sensible in practice. It will have disastrous consequences.
Perhaps I may also say something about the issue of principle because the Minister emphasised this point in his opening remarks. He suggested that only those who are truly innocent should receive compensation for a miscarriage of justice. I say to him with the greatest of respect that that approach is wrong in principle. Our law does not ask people to prove that they did not commit a crime; it is for the state to prove that they did commit a crime. The noble and learned Lord, Lord Hope of Craighead, who I am pleased to see in his place, addressed this point with characteristic clarity at paragraph 97 in his judgment in the Adams case. He said that a person against whom there is no sufficient and admissible evidence on which a conviction can be based should not be the subject of the criminal process in the first place. Therefore, if a new or newly discovered fact fatally undermines the prosecution evidence, it is,
“right in principle that compensation should be payable”.
My noble and learned friend added at paragraph 102 that if the evidence against the defendant is conclusively shown to have been completely undermined, then there has been a miscarriage of justice which is as great whether or not the defendant committed the crime because in neither case should the defendant have been prosecuted.
Lord Faulks
My Lords, this has been an excellent debate once more, in which the House has shown its considerable knowledge, learning and experience of the issues raised by this amendment. Let me start by saying that there is general agreement on one thing: the Government were right to seek to enshrine in legislation the appropriate test for eligibility for compensation following a miscarriage of justice. The common law was undoubtedly in a state of confusion, notwithstanding the distinction of the judges engaged in the exercise of trying to provide a workable test. The decision in the Adams case, a resounding 5:4 victory, was described in a way that I could not possibly presume to describe it by the noble and learned Lord, Lord Brown, as an unprincipled fudge. It was, of course, a culmination of effort—an absolutely high-quality effort—to try to arrive at a workable definition. However, the noble Lord, Lord Pannick, says that the Government’s test will lead to disaster—to acrimonious litigation and uncertainty.
I have respectfully to disagree, because the Adams judgment has resulted in some 16 judicial review cases in the three years since the judgment. During the period from 2008 to 2011, when the case law laid down by the courts required, consistent with the Government’s position, that the applicant was clearly innocent, only two judicial reviews resulted from applications from those convicted in England and Wales. Therefore, there is likely to be acrimonious litigation. I am somewhat reluctant to be drawn on what the result would be in any particular cases, whether it is the Sally Clark case or other cases. The noble Lord, Lord Brennan, was, I think, referring to compensation under the ex gratia scheme, which was abolished by the Home Secretary in 2006. Here we are considering revisions of Section 133, which requires that the applicant has a conviction—whichever definition is adopted—and this will continue to be a requirement.
The difference of opinion on definition is simply what a claimant has to establish. It is said that the Court of Appeal Criminal Division is not primarily concerned in these cases with proving innocence—quite so. It may well decide that a conviction is unsafe, but in doing so, the Court of Appeal will, and does, provide cogent and comprehensive reasons for that decision. It does not simply declare it. That provides the basis on which the Secretary of State or those working under his direction will be able to make an assessment entirely in accordance with the very straight- forward and clear test that we suggest is appropriate.
The noble Lord, Lord Pannick, said that our law does not ask someone to prove their innocence. I agree entirely. Nor does this provision. It does not require an applicant to prove their innocence; it simply requires them to prove eligibility for compensation—money—when they are clearly innocent, to use the expression used in the common law or, as we describe it in statutory language, proof that they have not done it.
We ask the House to bear in mind that we have a position of uncertainty and litigation, which requires clarification by Parliament, as is agreed. Parliament has provided as clear a definition as can reasonably be arrived at, and one which we say is consistent with justice, does not offend the presumption of innocence and resolves the difficulties that judges have had in arriving at a workable conclusion.
The presumption of innocence is not in any way offended by the clause. I suggest to the House that it should agree that the House of Commons has considered carefully the high quality of the debate and the division of opinion among noble and learned Lords, and should respect and confirm the House of Commons decision.
Lord Pannick
My Lords, I am grateful to the Minister for the careful way in which he has addressed these matters and for the time and trouble that he has taken on this issue, not least in the helpful discussions that I have had with him over the past few months. My noble and learned friend Lord Brown of Eaton-under-Heywood spoke in favour of the Government's position. As he mentioned, he dissented in the Adams case. He did not approve of the test of the noble and learned Lord, Lord Phillips, in 2011 and he continues, as he is perfectly entitled to do, to dissent from the case made by the noble and learned Lord, Lord Phillips. The noble and learned Lord described the test of the noble and learned Lord, Lord Phillips, as a fudge. Some of us are quite partial to fudge, but I confine myself to reminding your Lordships of what was said in the Supreme Court in answer to the noble and learned Lord, Lord Brown, by the noble and learned Baroness, Lady Hale, in her judgment in the Adams case. She said:
“I do sympathise with Lord Brown’s palpable sense of outrage … But Lord Phillips’ approach is the more consistent with the fundamental principles upon which our criminal law has been based for centuries. Innocence as such is not a concept known to our criminal justice system. We distinguish between the guilty and the not guilty”.
A person does not have to prove their innocence in court, said the noble and learned Baroness, Lady Hale —I agree—and a person should not be required to prove their innocence when they apply for compensation after a miscarriage of justice has been established in the Court of Appeal.
As the noble and learned Lord, Lord Hope of Craighead, said this afternoon, the Government’s approach will inevitably mean that people who are in fact innocent will fail to obtain compensation for a wrongful conviction established in the Court of Appeal simply because they cannot prove—it is often very difficult and sometimes impossible to prove—that they did not commit the crime. The Minister said in his observations in reply that the Government’s test does not require an applicant to prove their innocence. That is precisely what the Government’s amendment does; that is precisely what is so objectionable.
I remain concerned not just about the principle; I remain very concerned about the practical consequences of the Government’s amendment. We are dealing here, as I said in opening, with the most sensitive, controversial cases in criminal law. The Court of Appeal will have allowed an appeal because the prosecution case has been fatally undermined. The defendant is released from prison. He or she may have been in prison for many years. Then, say the Government, the Secretary of State must pronounce on whether that applicant has proved that he or she did not in fact commit the crime.
Nothing is more likely to prolong the misery of the miscarriage of justice not just for the applicant but for the family of the victims of the crime, whoever committed it. Nothing is more likely to provoke further litigation. It has never been the role of a Secretary of State in our system of law to determine whether a person is innocent of an offence. I do not think that it is desirable that we should now make it the role of the Secretary of State to determine whether someone is innocent of an offence. I wish to test the opinion of the House.
Legal Aid
Lord Pannick Excerpts(11 years, 10 months ago)
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Lord Pannick (CB)
My Lords, the noble Lord said that Section 10 is working effectively. Will he give further consideration to the recommendation of the Low commission, chaired by the noble Lord, Lord Low of Dalston, that the application process for Section 10 is much in need of simplification? Will the Government act on the concern expressed by the Joint Committee on Human Rights about the lack of training for Legal Aid Agency employees who are responsible for making decisions about Section 10?
Lord Faulks
The Government are aware of the JCHR’s concern about the lack of training. I have been reassured that the employees are appropriately trained and aware of their responsibilities. In terms of the forms, I give the same answer that I gave before, which is that the matter is kept under review. It is believed that the forms are perfectly within the capabilities of solicitors to understand. If one of these forms is inadequately filled in, you are told, whereas with some forms in other contexts you never know which box you failed to tick.
Criminal Legal Aid (General) (Amendment) Regulations 2013
Lord Pannick Excerpts(11 years, 10 months ago)
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Lord Pannick
That this House regrets that the Criminal Legal Aid (General) (Amendment) Regulations 2013 restrict the availability of legal aid, advice and assistance in prison law cases (SI 2013/2790).
Lord Pannick (CB)
My Lords, another week, another set of legal aid regulations to regret. These regulations will severely limit the availability of legal aid advice and assistance in prison law. I shall mention four examples of issues for which legal aid advice and assistance will no longer be available by reason of these regulations. The first is Parole Board proceedings for indeterminate sentence prisoners—ISPs—where the Secretary of State refers the case before the expiry of the minimum term for advice on a move for the prisoner to open conditions, and also where an ISP is removed from open conditions and the Minister seeks advice from the Parole Board on a return to an open prison. This will no longer be covered. The Parole Board itself said in its written evidence to an inquiry on this subject by the Joint Committee on Human Rights that because most prisoners require a period in open conditions before the Parole Board can be satisfied that they are safe to release:
“There is in consequence, a great deal at stake for prisoners at these reviews”.
The need for high standards to be applied at such hearings, in the interests of the prisoner and in the public interest, is obvious, and because of the impossibility of prisoners representing themselves effectively at such hearings and problems such as how to manage a prisoner cross-examining a professional witness giving evidence about the prisoner’s conduct in prison, the Parole Board told the Joint Committee in its written evidence that it believed the proposal to remove legal aid,
“is very likely to impede our attempts to deal with cases fairly, promptly and effectively”.
It is very surprising that the Secretary of State should have proceeded with the changes despite the concerns expressed by the Parole Board.
The second example of decisions which will be excluded from legal aid is decisions to place or keep a prisoner in Category A—that is, prisoners assessed to be a high security risk—which of course affects prison conditions. A third excluded category is the allocation of places in mother and baby units. Vulnerable women will be denied access to legal advice on whether they should be separated from their babies. A fourth example is decisions on removal from association—that is, segregation decisions. One could give many more examples.
What are the justifications offered by the Secretary of State for denying legal advice and assistance in such important matters, even if all other eligibility criteria are satisfied? The main answer given by Mr Grayling, the Secretary of State for Justice, in his oral evidence to the House of Commons Justice Select Committee on 3 July 2013 is that the difference between him and his critics was “ideological”—his word. Indeed, he used that word three times in as many minutes in response to questions on this matter. The report of the evidence is published as HC 91. Mr Grayling told the Justice Committee:
“I do not believe that prisoners in jail should have the right to access legal aid to debate which prison they are put in”.
He went on to say that they should not have the right to legal aid to raise other questions about their treatment, with limited exceptions.
This is to reverse 35 years of progress in the approach adopted by the legal system to the treatment of prisoners. The modern era of prison law began in 1978 when the Court of Appeal required fair disciplinary proceedings for those alleged to be involved in the Hull prison riots. Since that decision, our courts have repeatedly made it clear that administrative decisions in prison must comply with basic standards of legality, procedural fairness and rationality.
The application of legal standards to decision-making within prisons has immeasurably improved the quality of those decisions and ensured greater transparency and accountability. No one, with the possible exception of the Secretary of State for Justice, could doubt the public benefits in enabling prisoners to hold prison authorities to basic standards of legality and fairness or the indispensable contribution which has been made in this respect by legal aid. That a Secretary of State, and indeed a Secretary of State for Justice, should now, for so-called ideological reasons, wish to reverse such developments is very much a matter for regret.
Mr Grayling’s second point is that legal aid is not needed because the internal prison complaints system and the Prisons and Probation Ombudsman will provide redress where appropriate. Without legal assistance a prisoner is simply not going to be able to make his or her points effectively and speedily by reference to the applicable legal requirements. Unhappily, many prisoners lack basic skills of literacy or suffer from other problems which impede their ability to present an effective grievance. Her Majesty’s Chief Inspector of Prisons, Mr Nick Hardwick CBE, echoed these concerns in his evidence to the Joint Committee on Human Rights, as recorded in paragraph 174 of the Committee’s seventh report.
As the Law Society has pointed out in its helpful briefing on this Motion, at present many complaints are simply, effectively and speedily resolved by a solicitor’s letter setting out the legal position to the person taking the decision. The Prisons and Probation Ombudsman can only make recommendations and provides a much slower method of seeking redress than a solicitor’s letter. The ombudsman, Mr Nigel Newcomen CBE, told the Joint Committee on Human Rights that he was concerned about the Government’s proposals, in particular because his office was unable to cope with the expected increase in workload.
These regulations will not even save public money. The cost of maintaining legal aid in ISP cases before the Parole Board, for example, is minimal, and the cost of ISPs remaining unjustifiably in closed conditions when they could safely be allowed to move to open conditions is high. The Howard League for Penal Reform has pointed out that the Ministry of Justice has put the cost of dealing with each complaint to the ombudsman at £830, which is more than three times the £220 fixed fee for a solicitor doing this work under the legal aid arrangements.
In the Supreme Court last April, in the case of Osborn v the Parole Board, reported in volume 3 of the 2013 Weekly Law Reports page 1020, paragraph 72, Lord Reed stated for the court that,
“procedures which involve an immediate cost but contribute to better decision-making are in reality less costly than they may appear”.
I suggest that the Minister conveys the suggestion to the Secretary of State for Justice that the words of wisdom of Lord Reed should be displayed on Mr Grayling’s desk in very large letters.
These regulations will do enormous damage to the rule of law in prisons and there is no justification for them. I beg to move.
Baroness Kennedy of The Shaws (Lab)
My Lords, I echo everything that has been said by the noble Lord, Lord Pannick. I, too, regret that the Government are taking this course and regret profoundly what was said by the Secretary of State for Justice, Mr Grayling, in describing the differences between those who supported the maintenance of legal aid and those who were agin it. It is as though it is not enough to go to prison and lose your liberty, and experience the deprivations that we know imprisonment means, so we are looking for other ways to punish.
I will speak specifically about women. As we in this House all know, women in prison are very largely those who have experienced abuse or domestic violence. They are often in prison because of serious social problems, they have mental health problems, and often have problems of addiction. The panoply of problems that they have do not make them people who will be well able to represent themselves in trying to get their rights in prison.
I will mention the issue of mother and baby units. In the past I have been involved in such cases, where a woman seeks to prepare for an application to have her baby remain with her, and has to secure supportive evidence, expert reports, and so on. It is impossible for a woman to do that without the help of a solicitor. Representations have to be made in relation to any refusal to offer a woman a place in a mother and baby unit, and I can assure noble Lords that that is sometimes done—and not done—for the best of reasons.
Women sometimes make applications for temporary release when something disastrous is happening at home with other children; they seek a temporary licence so that they can spend time at home. Many female prisoners are their children’s primary carer. We know that 55% of women in prison have a child under 16 and wish to make use of that release on temporary licence when they have emergencies at home. I know from experience that the application of the release on temporary licence policy is frequently misapplied by prisons, and women who are eligible are incorrectly refused. Legal help is vital to them for making their application, making representations, drawing on supportive evidence, and so on, but it is no longer available.
Disabled prisoners often have real problems about the suitability of their accommodation or other services they need, and need legal help to acquire them. Mentally ill prisoners do not get legal help to deal with many of the attendant matters that go along with convincing the authorities of the seriousness of their problems, whether that is on the depressive scale or as regards behaviours that clearly show disturbance, but which often bring them into dispute with the authorities in the prison. There are often arguments about the capacity of such women. They present with difficult and challenging behaviour which is often met with a strong disciplinary response from the prison so that they are awarded extra days as punishments, when in fact mental health is the problem. As extended prisoners, women often have the date of release set further and further away because of their behaviour, but that behaviour is due to their mental ill health.
In those sorts of cases you need to have the representation of someone who is legally qualified to help take the appropriate course and find the appropriate expertise to support applications. The Government’s response is that prisoners should use the internal complaints procedures—the noble Lord, Lord Pannick, described the inadequacy of that. The process of appealing to the ombudsman is often slow and does not give the remedy that is sought. Add to all that the poor educational attainment of most women in prison and the situation is hopeless.
Before this debate a Member of this House said to me, “Are you speaking in the legal aid debate?”, to which I replied, “Yes”. He said, “You know it’s hopeless”. My response to that was that it may be hopeless, but I hope that by having this debate some members of the Government will feel shame. I am speaking of the most vulnerable today. I hope that a feeling of shame will enter into discussions among the Government and between the coalition partners about the impact of this on the lives of some of the most fragile people in our society.
Lord Faulks
I cannot I am afraid give an exact date for that, but I shall take back the noble Lord’s concern and I will write to him when I have information. Of course, it is a matter that will be taken very seriously at the Ministry of Justice.
Lord Pannick
My Lords, I am grateful to the Minister for doing his best to defend this sorry set of regulations. The Government are very fortunate indeed to have his services on the Front Bench. I am grateful to all noble Lords who have spoken in this debate and who have explained with clarity and force why the regulations are wrong in principle and damaging in their consequences.
The Minister may have noticed the embarrassing lack of support for these regulations on the Benches behind him, and indeed anywhere in this House tonight. Before the Minister’s speech, your Lordships heard 15 speeches—I have been counting—all of them regretting these regulations and all highly critical of them and of the purported justifications for them. Noble Lords who have spoken tonight have reflected the widespread concern about the regulations that exists outside this House.
The Minister’s main argument, that the internal complaints system and the ombudsman system are an effective substitute for legal assistance and advice, is simply contrary to the advice of the Parole Board, the inspector of prisons and the ombudsman. It is contrary to court judgments over the years. It is contrary to the experience of all those who have spoken tonight, apart from the Minister. Indeed, it is irrational, given the lack of literacy, the youth, the immaturity and the mental health difficulties of so many prisoners, let alone their obvious inability to identify and present the issues that arise in their cases.
I ask the Minister to send a copy of today’s Hansard to the Secretary of State tomorrow morning, to ask the Secretary of State to reflect on the nature and strength of the concerns that have been expressed tonight from the broad experience and expertise that so characterise this place, to draw the Secretary of State’s attention to the absence of any support for these regulations outside his own ministry and to ask the Secretary of State to think again about this important matter. I beg leave to withdraw the Motion in my name.