Judicial Review and Courts Bill

Lord Etherton Excerpts

Committee stage
Thursday 24th February 2022 Lords Chamber

Moved by

[Lord Etherton]

51: After Clause 45, insert the following new Clause—
“Pro Bono Representation: TribunalsPayments in respect of pro bono representation: tribunals
(1) Section 194 of the Legal Services Act 2007 (payments in respect of pro bono representation) is amended as follows. (2) In subsection (1) after “civil court” insert “or tribunal”.(3) In subsection (3)—(a) after “the court” insert “or tribunal”; and(b) after “in respect of that part)” insert “, but so that no award made under this subsection may exceed the amount that the court or tribunal could order to be paid in respect of R’s representation of P, had such representation not been provided free of charge in whole or in part”.(4) In subsection (4) after “the court” insert “or tribunal”.(5) In subsection (5) after “the court” insert “or tribunal”.(6) In subsection (7)—(a) after “Rules of court” insert “and tribunal rules of procedure”;(b) omit the word “civil”; and(c) after “the court” insert “or tribunal”.(7) In subsection (10)—(a) in the definition of “legal representative” for “exercising a right of audience or conducting litigation on the party's behalf” substitute “, who has a right of audience or has the right to conduct litigation in relation to any class of proceedings in any part of the Senior Courts of England and Wales, or all proceedings in county courts or magistrates’ courts, whether or not the person is exercising such right in the particular proceedings”;(b) in the definition of “relevant civil appeal”, after paragraph (a) insert—“(aa) from the Upper Tribunal in accordance with permission granted under section 14B(3) of the Tribunals, Courts and Enforcement Act 2007 (appeal to Supreme Court),”; and(c) after the definition of “relevant civil appeal” insert—““tribunal” means—(a) the First-tier Tribunal;(b) the Upper Tribunal;(c) an employment tribunal;(d) the Employment Appeal Tribunal;(e) the Competition Appeal Tribunal; and(f) any other body, established under or recognised by any enactment, which performs the function of determining matters, which are not criminal in nature, including but not limited to regulatory and disciplinary issues, and which has the power to make an order for the payment of costs.””Member’s explanatory statement
These new provisions will confer on tribunals the same power as civil courts and the Supreme Court currently have to order an unsuccessful legally represented party to pay pro bono costs to the prescribed charity the Access to Justice Foundation where the successful party has been represented pro bono.

[Lord Etherton (CB)]

As I foreshadowed at Second Reading, I have tabled this amendment to enable tribunals to make pro bono cost orders, as is currently the position in the civil courts and the Supreme Court. I am very grateful to the Minister and his officials for their positive engagement on this issue. I know that the Minister himself, as he was at Second Reading, remains genuinely sympathetic to the principle embodied in the amendment.

We have not received so far any amendment proposed by the Government to match what I have tabled, but this morning those representing the Access to Justice Foundation, which is the prescribed charity and will be the recipient of any pro bono award, received notification that the Attorney-General and the Solicitor-General support this change, with the Solicitor-General, who has general responsibility within the Government for pro bono, expressing strong support for it.

On that basis, I am cautiously optimistic that a government amendment will emerge in due course. The main issue of concern at the moment relates to the width of the tribunals that will be caught under the amendment. I know that work is going on regarding that. It would be useful for those who are interested in this issue to have the Minister’s current position recorded in Hansard. I beg to move.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, we fully support the amendment moved by the noble and learned Lord. There is nothing that I wish to add. It is plainly sensible. There is no distinction between the civil courts and tribunals, and it is an obvious case for orders in respect of costs.

[Lord Wolfson of Tredegar (Con)]

My Lords, as this is the last group in Committee, it is nice to end on a point of general agreement rather than discord. Whoever put the groups together, I take my hat off to them.

I respectfully welcome the proposals in Amendment 51, tabled by the noble and learned Lord, Lord Etherton, and am grateful to him for the time that he has given to me and my officials in discussing this. The amendment would allow pro bono cost orders to be made in tribunals, in much the same way as they are already available in the civil and family courts. This is a helpful proposal which will not only provide additional funding to the Access to Justice Foundation but—moving from pounds, shillings and pence to a statement of principle—importantly signals our support for the excellent work that is done pro bono by the legal profession up and down the country. Indeed, in the last group we heard an example of that from many years ago.

As I have already explained in meetings with the noble and learned Lord, we have two concerns about the amendment as drafted, though I underline that I am making not a point of principle but points of drafting. First, as drafted, it would apply to a very wide range of tribunals of different types, including tribunals for which the Government are not responsible; for example, professional disciplinary tribunals, such as those of the General Medical Council. I am sure that the noble and learned Lord and the Committee would agree that it would not be right for the Government to impose this measure on those tribunals that the Government are not responsible for, in circumstances where we have not been able to engage with them or seek their agreement. That is the first point: the ambit of the tribunals which we are talking about, although those for which the Government are responsible are, for these purposes, the vast majority, so that carve-out will not have too much of a practical effect, I hope.

There is a second point: issues of territorial extent. Again, as drafted, in Wales, it could impose measures on tribunals that are administered by the Welsh Government, while in Scotland, judges would not be able to make pro bono costs awards, even when they are dealing with reserved matters in reserved tribunals. That, again, is a drafting point I am confident we can discuss and agree on.

Therefore, I will formally invite the noble and learned Lord to withdraw his amendment, but I assure him on the record that I and the Government remain entirely supportive of the principle behind his amendment. As he says, my learned friends the Attorney-General and the Solicitor-General are also supportive of the measure. The noble and learned Lord and I have met on a couple of occasions now to discuss the amendment ahead of today’s debate. I will certainly continue to discuss this issue with him ahead of Report, and I am very hopeful that we will be able, between us, to do something that will resolve this issue and meet the point he seeks to address in his amendment.

[Lord Etherton (CB)]

I think there is nothing more to say. I am very grateful to the Minister for those indications, and on that basis, I beg leave to withdraw the amendment.

Amendment 51 withdrawn.