Civil Procedure (Amendment) Rules 2017

Baroness Young of Old Scone Excerpts

Wednesday 13th September 2017 Lords Chamber

[Lord Brown of Eaton-under-Heywood]

In so far as the sub judice rule would apply to a debate of this character, I respectfully do not for a moment accept that I am breaching it. I am suggesting that it is highly relevant to the present Motion to Regret, a Motion which, as the noble Lord said, was initially tabled in March and, therefore, before those proceedings. In so far as, for example, it is now said that we are in flagrant breach of the rule of law and all the rest of it, those issues fall to be decided properly in the context of full argument in those proceedings and not to be well-nigh pre-empted by a Motion to Regret today. For my part, I would not support a Motion to Regret without the benefit of the High Court’s judgment on the legal issues arising.

[Baroness Young of Old Scone (Lab)]

My Lords, I wonder if I might address the points made by the noble and learned Lord, Lord Brown, not from the point of view of his confidence in flexibility and the wisdom of judges but from the point of view of the people who regularly have to consider whether they are willing to put forward their personal assets and privacy and, indeed, of those organisations representing the public which are placed in that position. I should declare an interest: I am president, vice-president or chairman of practically half the conservation and environmental organisations that are involved in these cases.

I very much welcome the Motion to Regret of the noble Lord, Lord Marks, and I really do regret the way that the Ministry of Justice has barrelled on to implement the removal of the cap on claimants’ costs in environmental cases, in spite of the criticism by virtually all consultees and the views of the Secondary Legislation Scrutiny Committee, which I thought issued its opinion in a rather more trenchant and stinging way than I have seen it operate in the past, which was interesting.

As a country we have been criticised for some considerable time by the United Nations and others for our lack of compliance with the Aarhus convention. I was interested to note that yesterday the noble and learned Lord, Lord Keen, in briefing Peers on the Brexit Bill, said that although we will lose recourse to the ECJ in relation to environmental issues, our responsibilities under the Aarhus convention will remain. Alas, our responsibilities under that convention are not being delivered on a regular basis and we continue to be criticised internationally. Therefore, I regret the MoJ’s move as it takes us even further away from compliance.

I have personal experience of being involved with charities that have initiated judicial review in these circumstances. These charities are representatives of communities. The trustees of these bodies take very seriously their responsibility to represent communities on these important issues. However, they are now incredibly wary of committing to challenge the decisions of public bodies through judicial review as they can have no assurance—other than the sorts of assurances which the noble and learned Lord, Lord Brown, attempted to give on the judiciary—that costs will not escalate and that they will have no influence over that as the cap can be changed at any stage in the process.

For individuals or unincorporated public bodies contemplating initiating a judicial review against a public body, the unpredictability and possible scale of the costs, the need to demonstrate the ability to pay and the risk to their homes and other assets are, indeed, chilling. Therefore, we have a situation in which individuals are being placed in a position where they have to think long and hard about taking such a case, as do responsible, publicly focused charities.

We do not know how many cases fail to be taken and how many people are deterred by these new arrangements as those decisions are made by individuals, families and communities and, in the case of charities, made behind closed doors. As an ex-chief executive of several charities, I suspect that charities would have to have pretty brave boards of trustees to undertake what is likely to be expensive judicial review under the current circumstances. We are very much seeing communities being priced out of environmental justice. I therefore urge the Minister to reconsider this decision to remove the cap and I urge noble Lords to support a reversal of this measure.

[Lord Cavendish of Furness (Con)]

Before the noble Baroness sits down, and for the sake of clarity, what exactly did she mean by charities being communities? What is the status of that?

[Baroness Young of Old Scone]

My Lords, I am delighted to explain that. In many cases our charities are the voice of the public and constitute the way in which the public organise themselves to have a voice in environmental challenges. As a nation we are blessed with a rich range of charities in the environmental field, which have operated for many years in hugely responsible ways to hold government to account on behalf of the communities in which they operate. I have much experience on both sides of this equation, having taken cases on behalf of charities such as the RSPB and having been on the receiving end of cases when I was chief executive of the Environment Agency. I value the role of charities, as do local communities.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I congratulate the noble Lord, Lord Marks, on bringing this regret Motion. I am always conflicted by regret Motions, because they are extremely weak, which of course infuriates somebody like me. However, at the same time they do two things. First, they send a message to the Government—they have to sit and listen and, perhaps, do something good for a change; but secondly, they allow people like me to get up and rant, and I would like to rant for a minute, because I am furious about this. I cannot see how any Government can reduce justice for all, and that is the principle at stake here. The principle is that justice is for everybody, however rich or poor. The noble Lord, Lord Marks, raised a case where a political party wanted to bring an environmental case and did not have the money for it. This will happen more and more.

We can look at some of the things that the Government are doing at the moment—for example, HS2, which is the most incredibly wasteful, stupid, unnecessary piece of infrastructure they could possibly have devised. That will raise all sorts of issues. It is already steaming through sites of scientific interest, and there will be huge environmental problems. By removing the cap, the Government are reducing the hassle they will experience in pushing this through. I therefore urge the Lords to vote for this Motion and show the Government that what they are doing is completely wrong. This Chamber has a real opportunity to make life better for people—and of course, people who are on a low income, and charity and community groups who do not have the money, will suffer because of this.