Criminal Justice and Courts Bill

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 9th December 2014 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I am moved to continue with Wales because I acted for my community—the Gresford community—when there was a proposal to opencast mine part of Gresford colliery at a time when there were about 260 bodies still buried in it as a result of the 1934 disaster. Your Lordships will appreciate how people felt about that: they felt that there had been a stitch-up between the National Coal Board and the local authority.

Since the matter had not been properly advertised, we took it to judicial review. We could not, however, expect every member of the community to be involved, so a committee of about eight people was set up to instruct solicitors and counsel to appear on this judicial review. It is those eight people I am thinking about, who might be found liable for costs. I can tell your Lordships that even then—back in the 1970s or maybe the early 1980s—costs were a considerable issue for these people before becoming involved in this matter. The result was that the judicial review was successful. The county council advertised properly and the villagers —the community—then made contributions to the consultation that took place. Although the decision to permit opencast mining went ahead, it was with very stringent conditions. The National Coal Board was very concerned to keep to those conditions, so the work was carried out strictly in accordance with them and the land was replaced to such a degree that it is now the training ground for Wrexham Football Club. Your Lordships will appreciate that in that case a decision was taken that excluded a community which had the highest sensitivities about what had happened. The fear of costs was something that might have deterred that successful action altogether.

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

I wish to support the Motion of the noble Lord, Lord Pannick, and resist the Minister’s Motion on rather a broader basis than perhaps has been suggested so far. The problem, or one of the problems, with the Minister’s Motion is that it leaves intact the central thrust of Clauses 65 and 66, which were of course objected to and disagreed with by the Commons on the basis set out in Commons Reason 106A:

“Because it is appropriate to impose duties, rather than confer discretions, on the High Court”,

et cetera. My deep disagreement with that basis of rejection is that I do not believe it is appropriate in this jurisdiction to impose duties and to narrow or eliminate discretions on the part of the judiciary.

In Committee in July, I suggested that it is difficult to think of any area of law less suitable than this one for this sort of legislative interference. We are here concerned with the inherent supervisory jurisdiction of the courts to hold the Government to account; to ensure that the rule of the law is observed when the Executive take action. Yet here is another example of the Government seeking to weaken those powers with the inevitable chilling effect, and in many cases making it practically impossible to bring a challenge. The fresh ministerial amendments still leave intact the provision that you cannot bring judicial review unless you give a whole series of particulars about how the process is to be funded.

In that same debate, the noble and learned Lord, Lord Mackay of Clashfern—my respect and admiration for him is second to none, not least since he had the sagacity 22 years ago to promote me to the Court of Appeal—rightly pointed out that it was the judges themselves who had originally sought to underpin the rule of court under which judges had previously exercised their judicial review jurisdiction by giving it legislative form. Thus was enacted the section of which the noble and learned Lord, Lord Woolf, spoke a little earlier: Section 31 of what used to be called the Supreme Court Act but, since the invention of a Supreme Court, is now called the Senior Courts Act. However, it must be recognised that Section 31 merely facilitated the exercise of the judges’ supervisory jurisdiction; in no way did it seek to constrain, limit or inhibit it. It imposed no duties on the judges and you will search it in vain to find such.

Now, though, in this clause, as in the one that we discussed a little earlier, the Government are intent on seeking to eliminate the judges’ powers and to impose duties upon them. I echo what the noble Lord, Lord Deben, said about the earlier proposal: this is an amendment of constitutional importance. In truth, it is not a party political matter. It is a question of where the boundary should be drawn between the Executive and the judiciary. The judiciary in this country, unlike its American counterpart, has always fully recognised the sovereignty of Parliament. We do not strike down primary legislation. Parliament, in turn, has not hitherto sought to whittle down the judges’ supervisory jurisdiction, and it is really inappropriate that they should now start to do so.

If the Government have their way on this or, on reconsideration later, on the previous or the next amendment, the constitutional balance will have shifted. The fact is that the Motions that the noble Lord, Lord Pannick, is advancing are ones that are truly worth fighting for.

[Lord Faulks]

My Lords, this has been a very useful debate. The questions of the information available to judges are difficult. Most judges would say that the more information that they have, the better, to enable them to exercise any discretion in any context. When it comes to making orders for costs, which can be extremely serious in their consequences, it is important that they have information. By the same token, the Government take the view that it is only fair that people who seek the remedy of judicial review, who will inevitably cause costs to be incurred—often by a public authority, so indirectly by the taxpayer—should not be able to hide behind shell companies. That much, I think, is agreed. Where there is still some disagreement is over whether those who want to contribute to a fighting fund or a potential claim—however one likes to characterise it—should have to disclose that information.

The amendment is regarded by some noble Lords as being unsatisfactory because the Government do not specify a particular figure or percentage. Although, as the noble Lord, Lord Pannick, quite rightly says, it is the Government’s amendment and he does not have to put anything forward, he said helpfully that it might be helpful if the figure was by reference to the overall costs of the judicial review. Our view, and I rely on the support of the noble and learned Lord, Lord Mackay of Clashfern, is that these are pre-eminently matters for the Civil Procedure Rule Committee. It is of course not a committee of which the Lord Chancellor—the subject of much criticism today and throughout the Bill—is the chairman or has control, but it has considerable experience.

The important thing, I suggest, is to consider what is really at stake here. I respectfully suggest that actually the noble Lord, Lord Rooker, put his finger on exactly the dilemma here: whether we are talking about people who are making small contributions to a community project or about quite large sums of money where there is a pooling of resources to take forward a claim. I shall try to characterise what we are trying to get at by these rules. We suggest that there is a difference between an amount of money that by most people’s standards would establish a vested interest in the outcome of a case and someone who, in support of a cause, wishes to make a small contribution to a fighting fund. It is the latter that our clause seeks to exclude. That is the difference. We have adhered to that as an approach. We are not seeking to exclude people who are making substantial sums. I respectfully suggest that £10,000 to £15,000, as referred to by my noble friend Lord Marks, is a substantial sum of money.

The amount that individual lawyers charge is of course often much criticised, but I am asked to give some idea about the sort of costs that may be involved in judicial review. For cases that proceed to a full hearing, the Public Law Project estimated in 2007 that, for a straightforward case, costs to a claimant could be in the region of £10,000 to £12,000—adjusted for inflation, that is £11,000 to £22,000. In 2012, Guildhall Chambers published information estimating this at £5,000 to £10,000. In relation to defendants’ legal costs, the Treasury Solicitor’s Department estimates that in 2013, in cases that it was involved in, the defendants’ costs ranged from £8,000 to £25,000 for non-immigration and asylum cases, and from £1,000 to £15,000 for immigration and asylum cases. For an oral permission hearing, the Treasury Solicitor’s Department estimates an average cost to a defendant for preparing and attending the hearing at around £1,000 to £1,500.

It is important to bear in mind that Clause 66 requires the court to consider the funding information and whether to make costs orders. Of course the noble and learned Lord, Lord Brown, is quite right: the funding must be provided for them to go on to consider how to exercise their power over costs. Importantly, though, whether to make any costs order against a third party, provided that the prerequisite is there, will be entirely for the court to assess. The clause itself, provided that Clause 65 is satisfied, does not affect the judge’s discretion. We think it is right that the judge, in exercising his discretion, should have regard to what information would reasonably be expected to make a proper judgment about whether costs should be paid.

There was a reference to the possibility that privacy would effectively be invaded by having to provide costs. The information would be made available to the court but not publicly available, in line with existing practice when the courts deal with information that concerns personal finances or is otherwise confidential. It is right that there is transparency in the more generally used sense, and that the courts are aware of the nature and extent of funding provided to a claimant from those directly party to, but not potentially controlling, the litigation.

The judiciary itself responded to the consultation on judicial review. So that I cannot be accused of misrepresenting what it said, I shall quote from paragraph 179:

“The court is already empowered to make costs orders against non-parties … We support the proposal that it should be mandatory for a claimant to provide details of how a case is funded … to assist the court in assessing whether to make a cost orders against a non-party. We welcome the acknowledgment that the court should retain full discretion in relation to the making of these orders”.

That is a point made by the noble and learned Lord, Lord Brown; he says that there should be no obligation on the part of those who are funding matters to provide information.

--- Later in debate ---

[Lord Brown of Eaton-under-Heywood]

My Lords, as I understand Clause 65, it involves an insertion into Section 31(3) of the Senior Courts Act. That will provide that no application for judicial review shall be made unless, as at present, the leave of the High Court has been obtained—that is fine. But then you insert these provisions—“unless the applicant has provided the court”. In other words, the court has no discretion left to grant leave to move unless this whole rigmarole is gone through and whatever it is ultimately decided has to be disclosed by way of the financial basis of the claim has been disclosed. That is the respect in which I suggest there is no longer going to be any discretion for the court to allow proceedings to go ahead.

[Lord Faulks]

That is entirely correct. The discretion would exist on whether to award costs. This is the discretion which is fettered, I entirely accept, to the extent that the Government think it is appropriate for it to be fettered because they consider that, because of what results from bringing a judicial review in terms of cost consequences, it is perfectly reasonable to provide within the realms of privacy the basis on which you are funding. That excludes those small contributors whom I have characterised, and whom I accept would be covered by the rules. Beyond that, however, we consider it to be an appropriate obligation. It is there to prevent what has been a potential evil. I will not go over the Richard III case again; the noble Lord, Lord Beecham, is relieved. Undoubtedly there have been cases where shell companies have been used; the case is lost; there is nobody for anybody to recover costs from and again the taxpayer loses. This can happen. This is not a draconian matter: we have made a concession which, I suggest, is a reasonable one. The rule committee can be trusted to come up, with its experience in the matter, with an appropriate compromise reflecting the principles that I have endeavoured to outline on the Floor of the House.