Criminal Justice and Courts Bill

Debate between Lord Sewel and Lord Pannick

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.

Localism Bill

Debate between Lord Sewel and Lord Pannick

Monday 31st October 2011 Lords Chamber

[Lord Pannick]

My answer to the noble Lord is that paragraph (c) is simply designed to maintain—as the Government say they wish to maintain—the existing common law principle, which is that the judge will indeed look at all the circumstances of the case and decide whether there has been unlawful predetermination. I am not seeking to change the common law position; I am seeking to maintain it. The Minister has the same objective; he does not have the objective—as I understood him—of changing the substance of the common law. The objection to Clause 25 is that, on its wording, that is precisely what it will do, or there is a real risk it will do that. That is why it needs further consideration.

In the hope that the result in your Lordships’ House is neither predetermined—

[Lord Sewel]

Could the noble Lord explain how his amendment would affect, for example, the situation where, a councillor at a committee meeting having argued very strongly on one side but the party group having met and decided collectively on a different position, the councillor then says, when approached immediately before the council meeting, “I am changing my vote”, and, when asked why, says, “That was the decision of the group and I accept it” and then goes into the council meeting and votes in accordance with the decision of the group? How would the amendment address that issue?

[Lord Pannick]

The amendment would address that issue by dealing with the question in the same way as the common law deals with it at the moment. No judge is going to accept that there is unlawful predetermination simply because a local councillor has followed the whip that is imposed by his own party or his own group. This happens day after day in local government, and there are no cases that can be pointed to in which the courts have said that that is unlawful predetermination. It is not unlawful predetermination because the local councillor has listened to the matters addressed in the local council meeting.

We are dealing with a phantom problem that is created by erroneous advice being given, or is said to be given, to local councillors up and down the land. We are dealing with it in Clause 25 in a way which is going to make the problem far, far worse; and it is for that reason that I wish to test the opinion of the House.