Criminal Justice and Courts Bill

Baroness Campbell of Surbiton Excerpts

Monday 27th October 2014 Lords Chamber

[Baroness Campbell of Surbiton (CB)]

My Lords, I, too, wish to add my support to these amendments for the reasons so clearly explained by my noble friend Lord Pannick and others. As noble Lords are aware, I have contributed to the debate on this part of the Bill throughout its passage through the House. Let me explain why. I have supported the amendments because I want to show how these government reforms will affect disadvantaged citizens, especially the 10 million disabled people in this country who seek legal justice. Sometimes I think that we forget about the disadvantaged, the poor and the disabled who have no means or recourse to abuse. They simply want access to justice.

I know—I really know—what disabled people experience on a daily basis. I do not need to remind the House that when public authorities get it wrong, my God, they get it wrong and it has devastating effects on the individual. It hits disabled people particularly hard because they are the most in need of taking public authorities to court to get justice for their services—the services that they rely on to survive and live. They are absolutely, disproportionately dependent on public services and judicial review. As I said before, I have never known judicial review to be abused by disabled people or the charities that support them.

Claude 70 will effectively allow public authorities to ignore due process. That cuts across the public sector equality duty, which is so crucial in holding public authorities to account. Coupled with the cuts to legal aid, Clause 70 will effectively deny access to justice to those who most need it—not the big companies or multinationals, but just the people who need it, those at the margins of society. That is not the kind of justice we want in our democracy for vulnerable citizens. This clause has absolutely no place on the statute book in these terms.

[Lord Carlile of Berriew (LD)]

My Lords, my name is added to a number of these amendments, and I will not repeat everything that has already been said, most especially by the noble Lord, Lord Pannick, the noble and learned Lord, Lord Woolf, and my noble friend Lord Marks. However, I cannot let this debate pass without making three comments about the unusual speech made by my noble friend Lord Horam.

First, his speech was inaccurate. He blamed judicial review for delays in infrastructure development and for making infrastructure development more expensive. Had my noble friend taken the trouble to read the successful judicial reviews of infrastructure development, he would have found that in 95% of the cases—and I may be underestimating that—the judicial review was granted because of the incompetence and sloppiness of officialdom ranging from government departments through to local authorities and other statutory organisations. The answer to that is for those public authorities to prepare their cases properly, to make their planning applications in due form and for Ministers, in appropriate cases, to call in major planning issues so that they can be decided more quickly.

Secondly, my noble friend’s speech was unusually statist. In his career he has, in a very distinguished way, exercised his principles repeatedly, having been a member of three political parties. As I understand it, he left his first party—the old Labour Party—because he regarded it as too statist, yet nothing could sound more statist than what he said just a few minutes ago. I am personally in favour of HS2, fracking and the Severn barrage.

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[Lord Lester of Herne Hill]

My Lords, I wish to make a couple of points in addition in support of the amendment. My personal experience in cases has been that third-party interveners in judicial review proceedings perform a vital task in enabling the judicial review court, if it so wishes, to open its windows on to a wider range of considerations. We are not dealing with a dispute between two civil parties. We are dealing, as has been said, with judicial review designed in the public interest to resolve questions of public law. One such case has been implicitly referred to by the noble Lord, Lord Pannick—the case in which the High Commissioner for Refugees intervened in a difficult point about the proper construction of the refugee convention read with our other provisions. The court found it extremely valuable and it enabled the court, led by Lord Bingham, to give an authoritative ruling on what were novel issues about the refugee convention.

Another case was from Northern Ireland. One of the strange things about the Bill, which I hope the Minister will deal with in his reply, is that this provision does not apply to Northern Ireland or Scotland. The Northern Ireland Human Rights Commission had to struggle for some years to have a right of audience at all and to be able to make third-party interventions. Members of the House will remember that a couple of years ago, the Attorney-General for Northern Ireland wanted to commit Peter Hain for scandalising the judiciary by daring in his memoirs to criticise the Northern Ireland High Court judge. The Attorney-General applied to commit for contempt. I was instructed by the Northern Ireland Human Rights Commission to make a third-party intervention. I like to think that the result of that written submission is what caused the Attorney-General to drop the whole idea, as he did.

Unless I am completely wrong, we are now in the curious position that the Northern Ireland Human Rights Commission will be able, with its very limited budget, to be a third-party intervener without this costs effect, whereas the Equality and Human Rights Commission, for example, with its limited budget, will not be in the same position. That seems arbitrary and it will make it harder for our senior judiciary to be helped by third parties, which is the whole object of the third-party intervention.

Another example from the distant past concerned privacy in relation to the disclosure of patients’ medical information in the Court of Appeal. I seem to remember that a third-party intervention in that case was absolutely crucial. It is vital that small NGOs and ordinary citizens who have something to contribute, if the court decides that it wants to hear from them or read their written submissions, should be able to do so without the threat of costs orders being made against them.

[Baroness Campbell of Surbiton (CB)]

My Lords, I wish to add my support for the amendments proposed by my noble friend Lord Pannick. This provision will, indeed, deter interventions from organisations with limited resources—organisations, as my noble friend Lord Low suggested, that are likely to have the best and most pertinent expertise about the more vulnerable sectors of our society: children, disabled people, elderly people. Judges have publicly recognised the value of specialist knowledge in helping them to make informed decisions, as demonstrated by my examples in Committee. I had the privilege to be involved in interventions in two landmark cases where my organisation and individual knowledge could contribute to the outcome, which everybody heralded as a great success. I know that the Government’s reforms would have deterred me and my organisation from intervening. I believe that cases will be very poor for that.

It is critical that intervention remains readily available and that we do not deter weak charities and individuals who are quite sceptical about getting involved at all. Let us face it, intervening in a High Court case is a scary prospect. I know because I remember I was terrified. Therefore, I believe that these provisions will have a devastating effect, particularly on the community that I know best, disabled people—the very people who need the most support, protection and expert advice, coming from maybe some of the people who know them best and who have themselves experienced what they might have been going through or might go through. Clause 73 cannot be allowed to stand because there will be no interventions of such knowledge and value—interventions that have literally changed the lives of some disabled individuals and interventions that will change the lives of those who come before the courts in the future.

[Lord Faulks]

My Lords, I am grateful to all noble Lords who have taken part in the debate on interveners. The position is that any person may apply to the court to give evidence or make representations in judicial review proceedings. However, we think it is right that people who intervene in judicial reviews should have a fairer financial stake in the case and do so in a way that does not cause the true parties to the judicial review additional costs.

Clause 73 aims to strengthen the costs rules in relation to third parties who voluntarily apply to join in judicial review cases as interveners. It does this by establishing two presumptions: first, that the court will order an intervener to pay their own costs—that is normally the position now; secondly, that it will order an intervener to pay the reasonable costs that they cause a party to the judicial review to incur by their intervention. However, neither would apply where, in the view of the court, there are exceptional circumstances making it appropriate for that presumption to be rebutted. Neither presumption will apply when the court invites an intervention—and courts do quite often invite interventions. The clause will not affect the judge’s ability to invite whichever interventions, from whichever interveners, he or she sees fit.

The clause has been subject to significant debate and, as I said at Second Reading and in Committee in this place, and as my honourable friend Shailesh Vara said in the other place, the Government wanted to look again at how best to ensure that interveners consider carefully the costs implications of intervening, while not deterring appropriate interventions in appropriate cases, and, as a result, whether any changes to the clause were required. We have taken into account the views expressed in this House and the other place. The Government have listened to the concerns raised in Parliament and by stakeholders but consider that the current clause is right and are not persuaded that amendment is needed. The Government have considered and discussed the clause in some detail. I know that my ministerial colleagues have also discussed it with fellow Peers. I regret to say that we have been unable to agree an alternative formulation. The Government recognise that interveners can add value to a case and we do not want to stop that. However, interventions should be made in the right cases after careful consideration beforehand. That means that interveners should have a fair financial stake in the case.