Criminal Justice and Courts Bill

Lord Sewel Excerpts

Wednesday 30th July 2014 Lords Chamber

[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.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I support the amendment. I notice that the Minister has invoked the senior judiciary in other aspects of the Bill. I remind the Committee that there is considerable judicial support for interventions—and not just in the Supreme Court. Judges have a very wide discretion in allowing such interventions. Only last October the noble and learned Baroness, Lady Hale—who is a Supreme Court judge, but she was speaking generally—spoke about how the more difficult a matter is on an important subject in the courts, the more help we need to try to get the right answer.

Interventions are enormously helpful. That is the view of the judges dealing with these kinds of cases. They have discretion as to whether to allow the intervention. Interventions come from organisations that do not have great resources. More often than not, the lawyers are in fact acting pro bono for NGOs and bodies such as Justice, of which I am chair of the council. The idea that this will now involve the real risk of incurring costs will have a very detrimental effect on something that is of enormous benefit in reaching a just resolution to many issues. I strongly support the amendment. I hope there will be second thoughts as to whether the change should be introduced.

Crime and Courts Bill [HL]

Lord Sewel Excerpts

Tuesday 13th November 2012 Lords Chamber

[The Chairman of Committees (Lord Sewel)]

I have to inform the Committee that if Amendment 1 is agreed to, I cannot call Amendments 2 to 10 inclusive.

[Lord Woolf]

I wondered whether anyone other than on the opposition Bench wanted to say something on this—I certainly do. I start by disclosing that I am the chairman of the Prison Reform Trust and the amendments in my name were put down with its support.

The noble Lord, Lord Ramsbotham, is absolutely right with his amendment. Whenever I get to my feet, I am conscious that as a young advocate, I appeared before a very well known judge, Mr Justice Stable, to advance an argument that my client should not be convicted of murder but manslaughter, and he said to me, “Mr Woolf, if you heed my advice, you would not water the brandy”. I fear that by getting to my feet, I may be inadvertently watering the brandy of the noble Lord, Lord Ramsbotham, because, as has been pointed out, if we get rid of the clause as a whole, we do not need to bother with the detail.

As to the detail, if it remains, I urge the House to get rid of the word “exceptional”. It has been used in legislation in the past. Wherever it has appeared, it has caused difficulties, not least because the question is: what is exceptional and what is not exceptional? That gives the advocate a difficult task; probably more importantly, it also gives a difficult task to the judge. You get into situations where judges are tempted to give an exceptionally wide meaning to the word “exceptional”. I remember a case where I did just that, because it created such an obvious nonsense that it resulted in injustice. A great judge, Lord Bingham, took a much narrower view of the meaning of that word than I did. The fact that two successive Lord Chief Justices should interpret that word in different ways illustrates my point.

With regard to the first of my tabled amendments, I urge the House to deal with the word “exceptional” if it allows this part of the schedule to survive. If it is removed, I suggest that proposed new subsection (2B) of Section 177 will have a sensible meaning. It would read:

“Subsection (2A) does not apply where there are … circumstances which … relate to the offence or to the offender … would make it unjust in all the circumstances for the court to comply with subsection (2A)(a) in the particular case, and … would make it unjust in all the circumstances for the court to impose a fine for the offence concerned”.

I do not think that the criticisms that I have made of “exceptional” apply to “unjust”. When judges are sentencing, they are trying daily to achieve a just sentence and if a sentence is unjust they will not impose it. The trouble with Section 177 is that if it is amended as set out in the schedule, it will become a vehicle for causing injustice. If you are sentencing you have lists of sentences for various offences, which you can impose. You might go down the list and decide that a community sentence is the appropriate one. Once a judge has decided that is appropriate, to say that he then has to perform an exercise to see whether that sentence is punitive—and put something else in if he comes to the conclusion that it is not—is really nonsense. It will cause him to do exactly what he has concluded is unjust. He has come to the conclusion that although the community sentence is necessary, it is not necessary to have an additional punitive penalty. From the practical point of view, that really is not a satisfactory outcome.

The other amendment with which I am involved in this group is Amendment 8. Or is that one not being spoken to yet? I apologise to the House; I will come to that later.

Parliamentary Voting System and Constituencies Bill

Lord Sewel Excerpts

Monday 24th January 2011 Lords Chamber

[Lord Forsyth of Drumlean]

I mention “Lochaber No More” because I suspect that that will be the consequence of this. As I said in the earlier debate, when I read the Bill I thought that this was a protection measure for Charles Kennedy’s constituency. He set me straight on that when I had lunch with him the other day. The most likely outcome is that the Boundary Commission will start, as it has always done, in the north; the constituency that is currently represented by Lord Thurso will become larger; and there will then be a fight between Mr Kennedy and the Chief Secretary to the Treasury for the remaining constituency. I do not know what my right honourable friend’s views are on primaries but they have always been enthusiastically embraced by the Liberal Party. If there is to be a contest, my advice to him was that he does not want it to be a primary because I think Mr Charles Kennedy will win hands down.

[Lord Sewel]

I do not wish to intervene in an internecine conflict within the coalition, but are the Government sure that their proposals are consistent with the Act of Union?

[Lord Forsyth of Drumlean]

As the noble Lord was such a great mover in the process of devolution, he is on thin ice when talking about the security of the union as a result of legislation passed through this House. However, that is a debate for another day.

I have some sympathy with the amendment because it seems perverse to set a physical limit. When we talked about the Isle of Wight the other day—I understand that the noble Lord, Lord McAvoy, has taken to quoting me extensively—I said that constituencies are not about blocks of numbers. However, neither are they about blocks of specific land mass area. I did not know how the Boundary Commission would deal with the problem, but we could end up with a new Caithness constituency, which is an entirely arbitrary line on the map, arising from this provision. Like the noble Lord, Lord Bach, we have put the proposition fairly and I do not understand why this provision is here, unless it was thought that it would provide protection for a particular constituency. That constituency, Ross, Skye and Lochaber, has worked very well. Despite his politics, the right honourable Member, Charles Kennedy, has represented it very well in Parliament.

I am always in favour of saving public money, but it strikes me as I look at the noble Lord, Lord Sewel, that there is a curious thing in the Scottish context in that we want to reduce the size of the House of Commons from 650 to 600, but the Scottish Parliament, which has 129 Members, has fiercely resisted any reduction in its size. If one wanted to give the Boundary Commission instructions, it would be far more important to try to co-ordinate the boundaries of the Scottish parliamentary Westminster constituencies with those in the Scottish Parliament, but that does not feature. Instead, we have this extraordinary thing that no constituency can be larger than the existing constituency, which in itself was created to take account of geographical and other boundaries.

I do not want to detain the House, and I certainly do not want to be accused of filibustering or anything of that kind, but the noble Lord, Lord Bach, makes an important point and I look forward to hearing the Minister’s explanation.