Criminal Justice and Courts Bill

Lord Carlile of Berriew Excerpts

Wednesday 30th July 2014 Lords Chamber

[Baroness Campbell of Surbiton (CB)]

My Lords, I wish to speak in support of all the amendments in this group and, in particular, Amendment 74, in the name of my noble friend Lord Pannick, and to oppose the Question that Clause 67 stand part of the Bill.

There is a very strong presumption that interveners will be liable for the other party’s costs arising from an intervention, as well as their own, unless there are exceptional circumstances. This, as I understand it, is regardless of the outcome of the case and of whether the intervention helped, so potentially they could be liable for the legal costs of the party who loses the case. As a lay person, I do not see the justice in that. At present, the court decides who pays the costs and, for me, this works perfectly well.

This provision appears to the lay person to be designed for one purpose only—to deter interventions from organisations with limited resources. Unlike government departments, they could not contemplate such a risk. That applies to many charities; I spoke about this at Second Reading. Many of them have very small budgets and are run by volunteers, who are only too aware—perhaps they are overcautious—of their responsibility to avoid any financial risks.

Judges have consistently acknowledged the value of interventions in helping them to come to the right decision. It is in the public interest that they hear relevant evidence on important issues. If fewer interventions are made, they will lose vital sources of expertise, especially in relation to those most in need of protecting. The intervention of the Equality and Human Rights Commission in the case of R (B) v DPP in 2009 is a really good example of this. In this case the Crown Prosecution Service stopped a prosecution because the victim had a mental illness. This led to valuable new guidance on dealing with vulnerable witnesses and defendants in the criminal justice system.

During my time at the Disability Rights Commission —I was on the legal committee at that time—the DRC’s intervention in Burke, a case concerning the GMC’s guidance on the withdrawal of food, hydration and treatment, was, unusually, singled out for praise by Mr Justice Munby. He referred to,

“a particular and highly relevant informed expertise which none of the other parties could bring to the task in hand”'.

I have to declare an interest here as I was closely involved as part of the intervention body. This landmark case has had a profoundly positive effect on the patient/doctor relationship in this country when it comes to planning end-of-life treatment.

Interventions have a long and distinguished history and we cannot allow that to be weakened for the sake of the one or two examples of the bad apple. Where would we be today without the Leslie Burke case?

[Lord Carlile of Berriew (LD)]

My Lords, I rise with an appeal to my noble friend the Minister, whom I know to be a very good lawyer and a very sensible person, to accept the view being expressed around this Committee that this clause should not appear in the Bill.

I added my name to those intending to oppose the clause because I believe that, if there is one clause in the Bill that does grievous bodily harm to judicial review in this country, it is this one. Judicial review, as the noble Lord, Lord Pannick, said eloquently in his introduction—and as the noble Baroness, Lady Kennedy, illustrated, too—has over the years benefited from numerous interventions, sometimes from surprising sources. We are familiar with interventions by Liberty. When I was the independent reviewer of terrorism legislation, I disagreed strongly with some of those interventions, but I valued every single one because they enabled the issues of national security that were before the courts to be tested at all levels of judicial review and not merely in the House of Lords or the Supreme Court.