Criminal Justice and Courts Bill

Baroness Lister of Burtersett Excerpts

Monday 27th October 2014 Lords Chamber

[Lord Pannick (CB)]

My Lords, this group of amendments is concerned with Clauses 74 and 75, and it relates to costs capping orders, or protective costs orders, as they were previously called. In a case that raises issues of public importance, the court has a power, before the case is heard, to set the maximum figure for the costs that a claimant will be required to pay should the claim not succeed. The object of such an order is to ensure that a claimant who raises an issue of public importance is not deterred from bringing the claim because of the risk of having to pay unquantified costs should the claim fail.

At the moment costs capping orders are a matter for the discretion of the court. They are rarely made, particularly in contexts other than environmental claims, which Clause 76 rightly recognises to raise special considerations because of an international convention, the Aarhus convention. The Minister, in correspondence, has helpfully referred to three or four cases a year of protective costs orders being made outside the environmental field. It is not a major problem. I have seen no evidence to suggest that the current exercise of the costs capping order power by the courts has caused any problems at all, other than the general problem that government departments would much prefer not to be the subject of judicial review applications at all.

Amendment 166 addresses a particular vice of Clause 74. Clause 74(3) provides that a costs capping order may be made,

“only if leave to apply for judicial review has been granted”,

but such a provision would defeat the very object of a costs capping order. If an applicant cannot seek and obtain a costs capping order in an appropriate case until leave to move for judicial review is granted, applicants will inevitably be deterred from bringing those judicial review proceedings in the public interest in the first place. They will be deterred because of the risk of having to pay an unquantified amount of costs at the permission hearing. I suggest to your Lordships that protective costs orders should remain available, if and only if the judge considers it appropriate in the circumstances of the individual case, prior to the grant of permission to move for judicial review. I beg to move.

[Baroness Lister of Burtersett (Lab)]

My Lords, I am sorry I missed the beginning of the noble Lord’s introduction of this amendment but I got called out. I simply want to speak on behalf of the Joint Committee on Human Rights. Our latest report says:

“We remain of the view expressed in our Report on judicial review that restricting the availability of costs-capping orders to cases in which permission has been granted would be a disincentive to meritorious public interest challenges being brought”—

that argument has been made—

“and we maintain our recommendation that the Bill be amended to remove this restriction”,

and that we explicitly support,

“Lord Pannick’s amendment … which would preserve the court’s current power to make a costs-capping order at any stage of judicial review proceedings, including before permission is granted”.

I hope that your Lordships’ House will feel able to support the amendment moved by the noble Lord, Lord Pannick.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I, too, support this amendment. By the same token that the House approved the earlier amendments, logically this amendment must be allowed as well. The vice of the proposed legislation is once again the narrowing of the courts’ discretion and the chilling of the judicial review. In this case, in the most important area of public interest litigation, it is really imperative that this amendment succeeds.

--- Later in debate ---

[Baroness Lister of Burtersett]

My Lords, my noble friend Lord Beecham referred to the Joint Committee on Human Rights report on the residence test and legal aid for children. I want to return to a point I raised in Committee from the Joint Committee’s report, which referred to child protection cases. The committee said:

“We are confused as to why the Government excluded certain child protection cases from having to satisfy the residence test, but did not exclude from the test all legal remedies including judicial review. Whilst welcoming the funding of legal advice, we do not understand the justification that it is a good use of public money to give funding for advice that cannot be taken through to a judicial review”.

The Minister responded in Committee that,

“the Government’s position is that they do not believe that the JCHR should have concluded what they 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”.—[Official Report, 30/7/14; col. 1666.]

I am not sure that the committee actually said that. The committee acknowledged the Government’s argument that they would prefer that people do not have to make an application for judicial review. I am an adult and I would not want to go to judicial review without the help of a lawyer—lawyers do have their uses—and it is a bit unrealistic to expect a child to do so. However, the Minister carefully avoided the key point we were making, which is that,

“it is inevitable that judicial review will be a necessary remedy in certain cases. We are concerned that, if the residence test applies, there will no longer be the risk of a judicial review when a local authority fails a child in its care. This deterrent effect of a judicial review encourages local authorities to discharge their duties properly”.

We are therefore going back to the points made earlier about accountability and the deterrent effect. If a local authority knows that legal aid is not there, the chances of judicial review being brought are highly remote. The deterrent effect is, therefore, lost and the accountability of local authorities is diminished. That cannot be right.