Criminal Justice and Courts Bill

Lord Cormack Excerpts

Wednesday 30th July 2014 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I want to ask a question which was touched on by my noble friend Lord Beecham, by the noble Baroness, Lady Campbell of Surbiton, in our previous grouping, and also today by the noble Lord, Lord Pannick. At Second Reading, the Minister categorically assured your Lordships’ House that ensuring the courts have the information they need when awarding costs,

“does not mean that everyone who donates to a campaign will be at risk”. — [Official Report, 30 June 2014; col. 1542.]

Yet in both written and oral briefings that I have received, this very risk has been one of the concerns that have been raised. For example, Liberty and the Bar Council both warn of the chilling or deterrent effect of these clauses, which appear to mean that people who are not directly party to the proceedings but who have supported an applicant could be held liable for costs. Michael Spencer, solicitor for the Child Poverty Action Group—I remind the Committee of my interest as honorary president of that organisation, already referred to by the noble and learned Lord, Lord Woolf—spoke to the Human Rights Lawyers Association and warned:

“If individuals or groups fundraise or seek donations to help bring their case, the financial clauses of the Bill will put their donors and funders at risk too”.

Will the Minister spell out in words that a non-lawyer can understand who will and will not be at risk of liability? If it is not everyone, is it someone or is it no one? There are two very different ways in which the assurance could be interpreted. If it is no one, could the Minister point—perhaps this is not so helpful for the non-lawyers—to where in the Bill that is made clear? Some people are reading the Bill as saying that it will affect someone, even if not absolutely everyone.

Perhaps the Minister could also answer some very specific questions put by the coalition of civil society organisations that have been briefing noble Lords about the clarity needed on third-party costs liability. They ask whether, if a family chips in to fund a relative’s challenge to a treatment in a care home, they will be liable for costs, perhaps putting their homes at risk. Lawyers may act pro bono to support people who cannot pay. Will their gift in kind mean that they are treated as someone funding or likely to fund the case? If a community group uses crowdsourcing to fund litigation, as was the case with the Lewisham hospital challenge, will every donation carry a cost risk?

I hope that today, once and for all, it can be clarified who exactly is at risk as a result of these clauses. If the fears being voiced by so many organisations are realised, I suspect that noble Lords may want to come back to this matter on Report.

[Lord Cormack (Con)]

My Lords, the noble Baroness asks some pertinent and important questions. I had not intended to contribute to this debate, but was moved to do so by the extremely perceptive observations of the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Marks, both of whom made some valid points.

We will be constantly reminded in 2015 of those central words of Magna Carta:

“To no one will we sell, to no one deny … justice”.

When the noble and learned Lord, Lord Woolf, talked about access to justice and how important it is that everyone should have it, it reinforced my belief that, although it is entirely proper to ask the sort of questions which my noble friend Lord Marks addressed, I would rather—I have said something similar in this Chamber before—we erred on the side of leniency. One is constantly reminded of that old adage that it is better that 10 guilty people get off than that an innocent person does not. In the context of the judicial review, it is far more important that the sort of people for whom the noble Baroness, Lady Campbell of Surbiton, pleaded the other day should not be discriminated against than that somebody who may be a little better heeled should be so. I hope that we can bring a balance to this matter and remind ourselves of that basic tenet of the rule of law:

“To no one will we sell, to no one deny … justice”.

[Lord Davies of Stamford (Lab)]

My Lords, I agreed with the very eloquent plea on behalf of the system of judicial review in a country based on the rule of law which we have just heard from the noble and learned Lord, Lord Woolf. I agree also with the remarks of and amendments put forward by the noble Lords, Lord Beecham, Lord Pannick and Lord Marks.

My noble friend Lady Lister has asked a lot of the pertinent questions. The noble Lord, Lord Cormack, just mentioned Magna Carta. I draw his attention to another part of that document. Ever since Magna Carta, it has been a principle that the state, the King or the Government cannot seize the property of the citizen except by some very clearly defined legal process and in very sharply legally defined circumstances.

Although I think that the rules about making third parties financially liable for court cases are not as clear in the law as a whole, particularly since the Hamilton v Al Fayed case, as they should be—and it would very good if we could have those codified more precisely—what would happen to the law in the matter of judicial reviews if we passed this Bill as it is would be quite horrifying. Clause 66 (3) states that a,

“court or tribunal must consider whether to order costs to be paid by a person other than a party to the proceedings, who is identified in that information as someone who is providing financial support for the purposes of the proceedings or likely or able to do so”.

I repeat,

“or likely or able to do so”.

That is in no sense precisely defined—it could be anybody. It could be any of the people listed by my noble friend Lady Lister. It could be—could it not?—someone who is a member of a corporate body, even though he or she had played no particular part in preparing for, or promoting, that application for judicial review. It could be—that would be a fear—someone who was a known supporter of a particular NGO which itself was an applicant; but, again, without he or she having played any part in supporting that application, or perhaps without even knowing that the application was being put forward. That is a perfectly possible scenario. We need to make absolutely sure that none of these obvious perversions of justice could occur.

I totally agree with the implication of the rhetorical question posed in the House this morning by the noble Lord, Lord Pannick, which is: why are the Government doing this? Clearly the Government are doing this in order to close down the judicial review system to the greatest degree possible, with the intention of protecting the Executive branch—it is a very dangerous tendency. What they are doing here, however, is drafting a law which simply does not meet the elementary requirement to be precise, clear and unambiguous. I think this phrase,

“or likely or able to do so”,

is really quite terrifying, and I hope we get some clear definitions from the Minister. Just a statement from the Front Bench will not do: we need to remove these very offensive—very dangerous—words, and replace them with something much more precise.

Since this group of amendments encompasses two clauses and two clause stand part debates, on Clauses 65 and 66, it is probably the right moment for me to raise Clause 67. It is probably also right for me to raise another matter that is coming up: Clause 68. Perhaps Clause 68 is coming up in another group of amendments. Is that the case?

--- Later in debate ---

[Lord Cormack]

My Lords, I spoke earlier this year—I think it was in May—in the debate on the Motion proposed by the noble Lord, Lord Pannick. The arguments were overwhelming and there was nobody, other than the poor, beleaguered Minister, who defended. I am moved to get to my feet again because, once more, we have heard a very calm, analytical speech from the noble Lord, Lord Pannick, with some fairly devastating quotations. We have heard a moving speech from the noble Baroness, Lady Campbell of Surbiton. She says she is not a left-wing campaigner and she clearly is not. She says she is not a right-wing campaigner and she clearly is not. However, an inspiring campaigner she clearly is. She has given up her day today and we know that that taxes her resources very considerably. She has been here throughout the day and she has spoken, as she always does, forcefully—and on one occasion with some peculiar accompanying sound effects over which she had no immediate control, but she made light of that as she always does, as she also has a very good sense of humour.

The noble Baroness, Lady Lister, talked about public money. Of course she is right to focus on that because we are talking about public money, but what is public money? It is the taxpayers’ money, and many of those who need to benefit from our legal system are taxpayers. It is incumbent upon every Government to ensure the defence of the realm and the policing of our streets—one could go on and on—but this country is nothing if it is not a country which is wholly honouring the rule of law. In order for all our citizens—all Her Majesty’s subjects—to benefit from the rule of law, the right and proper sums must be spent on ensuring that we have the proper rule of law.

The noble Baroness talked about children. We have a particular and, indeed, one could argue, overriding responsibility for those who are least able to look after their own interests. That really is at the root of this afternoon’s brief debate on this amendment. Earlier, when he was replying with a great deal of sympathy as well as his normal aplomb, the Minister indicated that he and his ministerial colleagues want to consider what is said in Committee in this House and that he will come back on Report having reflected. He clearly needs to reflect on what has been said in this very brief debate. I hope he will, because I do not want to see Report punctuated by acrimonious Divisions, or even non-acrimonious Divisions, but I think we have to get it right, and at the moment we clearly have not.

I could go on, as I did briefly in the other debate, about my regret that the Lord Chancellor is no longer a lawyer, but we are, as they say, where we are. The Lord Chancellor is a highly intelligent man. I hope he is a man who will read what has been said today and in preceding debates in Committee, and that when he reads and listens to the arguments put with forensic skill, as I am sure they will be, by the Minister, he will agree that this measure needs very significant amendment.

[Lord Beecham]

My Lords, we have had many debates in the four years during which I have been privileged to be a Member of this House on the subject of legal aid. Three years on from the Legal Aid, Sentencing and Punishment of Offenders Bill, we continue to see measure after measure in statute and secondary legislation continuing the steady erosion of access to justice, exemplified in a similar context by the confirmation of a fall of 79% in the number of applications to employment tribunals following the introduction of substantial fees, and justified by the Justice Minister Mr Vara by the curious assertion that:

“It is not fair for the taxpayer to foot the entire £74m bill for people to escalate workplace disputes to a tribunal, and it is not unreasonable to expect people who can afford to do so to make a contribution”.

It is notable that he apparently does not think it reasonable for employers in such cases, even those which are found to be liable, to make a contribution. It is an indication of the approach which the Government take to the issue of legal aid and access to justice.

As the noble Lord, Lord Pannick, reminded us, during the debates on the LASPO Bill, the Government said legal aid would continue to be available for judicial review, but that position, as he explained, has been substantially undermined. Legal aid is no longer to be available for the preliminary stage of applying for permission to seek judicial review, notwithstanding the tight timescales for making such applications after the making of the decision which evokes the application or the fact that often cases are settled with the respondent acting to correct the position before a hearing.

We now face an additional problem in that the Bill, if not amended, would require an applicant to prove a high likelihood of success at the permission stage—something that we discussed earlier today. That necessarily implies a great deal of preparatory work with absolutely no guarantee of funding—fine if you are a landowner, developer or commercial organisation challenging a decision, with the means to pay for such advice, but fatal if you do not have the wherewithal to pay for the necessary advice and support.

Perhaps the nastiest change the Government are pursuing is the introduction of a residence test for legal aid, which would apply to judicial review and to most other areas of law. This would apply to everybody over the age of 12 months who could not prove a period of continuous residence of at least 12 months in the UK at some point in their lifetime.

As my noble friend Lady Lister has reminded us, the Joint Committee on Human Rights was particularly, though by no means exclusively, concerned about the impact of this position on children, and concluded that it was in breach of the UN Convention on the Rights of the Child, because it would prevent children having effective legal representation in cases that affect them. It noted that the Government had no information as to the number of children who might be affected, or the savings that would accrue as a result of imposing the test.

The Secondary Legislation Scrutiny Committee was also critical, not least in relation to the evidential requirements for a residence test, which is apparently to be carried out by the provider. The Ministry of Justice had not worked through all aspects of the policy, and the committee recommended that it should make a clear statement before the order—which was due to be subject to the affirmative procedure in your Lordships’ House recently, and itself became the subject of an application for judicial review—was considered. The committee concluded by noting that,

“this exclusion is being pursued primarily as a matter of principle since the savings made cannot be quantified. It is a very sensitive matter and the House will wish to be absolutely clear on how the residence test will operate in practice”,

and recommended that the order, which was due to be debated two weeks ago, should not be debated until these items had been published.

In the event, as the noble Lord, Lord Pannick, has reminded us, the residence test for legal aid was ruled unlawful by the High Court, as it was adjudged that the provisions introduced a criterion—residence—that had nothing to do with what the Legal Aid, Sentencing and Punishment of Offenders Act provided as the criterion, which was need. The judgment applies to all areas in which legal aid might be required—including judicial review, which could, as my noble friend Lady Lister has reminded us, apply to children as it might to adults.

Sir Alan Moses referred—in unprecedented terms, I would have thought, for a senior judge to apply to any Minister, let alone a Lord Chancellor—to the comments made by the Lord Chancellor. He quoted Mr Grayling as saying in his article:

“Most right-minded people think it’s wrong that overseas nationals should ever have been able to use our legal aid fund anyway”.

Then he referred to a group of left-wing lawyers—which on this occasion did not include me—

[Lord Cormack]

Shame.

[Lord Beecham]

But I wish it had.

To this characteristic blast on the political dog whistle, Sir Alan responded with an extract from a 40-year-old judgement of Lord Scarman, who said,

“every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection”.

That is a very clear statement of principle, which the proposal for the residence test, and the Bill’s proposals on judicial review in general, significantly threaten to undermine.

The Government, in their perennial search for votes—not from left-wing lawyers but from the right—are, of course, appealing. A less appealing prospect than this Government and this Lord Chancellor remaining in office and continuing to dismantle our system of justice is hard to imagine. I hope that the Government will listen to the noble Lord, Lord Pannick, and also listen, not necessarily to members of the Opposition but to the noble Lord, Lord Cormack, and the noble Baroness, Lady Campbell, and all the others who are disturbed by the trend of policy in this area—and I hope that they will rethink, in particular, the provision relating to judicial review. Whatever happens—in the Supreme Court, I presume—about the question of the legality of the residence test, it plainly conflicts with Lord Scarman’s clear judgment, which we should all respect.