Criminal Justice and Courts Bill

Lord Carswell Excerpts

Wednesday 30th July 2014 Lords Chamber

I conclude by saying to the Minister that I do not believe that anybody who has been involved in any cases of this kind or has seen the judgments given in them believes that the current costs system is anything other than robust, fit for purpose and free from the necessity of this kind of change.

[Lord Carswell (CB)]

My Lords, it is a known principle of the law that first-hand evidence is better than second-hand. As one who received and considered interventions in many appeals over the years, perhaps I may intervene briefly to assure the Committee how exactly correct the representations made by the noble Lord, Lord Carlile, and the noble Baroness, Lady Kennedy, were concerning the usefulness of interventions to the courts which hear them.

Of course, there are two stages, as has been made clear to the Committee. First, there is the stage at which the judges consider whether an intervention should be allowed at all. I assure your Lordships that that is a very carefully monitored procedure and that it is far from automatic that an intervener will be allowed to put in an intervention. Secondly, if the intervention is permitted, it is usually fairly briefly presented—and, if I may say so, if it is an intervention by the Members of this House who have mentioned this, very well presented. Some of the regular interveners—the names of three of them are before your Lordships—are of extremely helpful compass and have contributed a great deal to the decision in the proper form of appeals and to the advancement of the law in these cases.

I simply rise to say from the point of view of one who has received many of these interventions and has benefited from them that what has been said on the authority of other people is exactly right.

[Baroness Lister of Burtersett]

My Lords, I support the amendment and I also believe that the clause should not stand part of the Bill. I welcome the fact that the Government are in listening mode on this clause and that at its early stages the Minister has suggested that he is open to amending it, although I think that it would be better if it simply vanished. I put on the record that I welcome the Government’s climbdown on the question of standing. The Minister said that perhaps we had not given enough recognition to that, so I am doing so now. That was partly in response to points made by the Joint Committee on Human Rights—of which I am a member—which is very concerned about this clause. The committee said:

“Third party interventions are of great value in litigation because they enable the courts to hear arguments which are of wider import than the concerns of the particular parties to the case”;

and, as has been pointed out:

“Such interventions already require judicial permission, which may be given on terms which restrict the scope of the intervention. We are concerned that, as the Bill stands, it will introduce a significant deterrent to interventions in judicial review cases, because of the risk of liability for other parties’ costs, regardless of the outcome of the case and the contribution to that outcome made by the intervention”.

It went on to say that,

“it is not clear to us at what mischief this clause is aimed”,

a point made with regard to the previous group of amendments. The committee goes on to say:

“The Government has not produced evidence of abusive interventions or cases in which an intervention has significantly and unjustifiably increased the costs of the case for other parties”.

In contrast, the briefings that we have received include numerous examples where interventions have assisted the courts, as recognised by the senior judiciary; this point has already been made by a number of noble Lords. A number of us here attended an oral briefing recently, and I was struck by the presentation made by a representative from Just For Kids Law. It is very clear that the new rules can prevent it playing this role, thereby depriving the courts of very important specialist information about children in criminal law.

The organisation Justice regrets that the Government have made no attempt to assess the public interest of interventions. They have given no indication of the practical implications. Perhaps noble Lords will permit me to read a series of questions that Justice has asked, because I believe that they deserve an answer. It says:

“While cases of obvious time wasting by third party interveners are easily addressed under the rules currently in place, how will the court be able to determine whether additional costs are in fact attributable to an intervention? If an intervener acts within the bounds of his permission to intervene, with written and oral submissions made only as directed by the court, will they avoid costs? On the language of ‘exceptional circumstances’ proposed in the Bill, it would appear not. If an intervener provides clear, concise reasoning which clarifies the issues and saves everybody time, will saved costs be deducted from those otherwise payable by the intervener? The allocation of costs referable to an intervention is unlikely to be straightforward”.

I have already quoted from the joint briefing, in which civil society groups warn that there is a real risk that the court will lose the ability to hear from that part of civil society that represents the poor, the weak and the excluded, and to bring specialist expertise to bear. This clause will further tilt access to justice in favour of those with power and resources, who will be able to bear the costs, and against those without power and resources, who will not be able to bear the costs. This is in the context of legal aid cuts, which are already tilting this balance beyond what can possibly be deemed to be just.