Criminal Justice and Courts Bill Debate
Full Debate: Read Full DebateDepartment: Ministry of Justice
Lord Faulks
Main Page: Lord Faulks (Non-affiliated - Life peer)Department Debates - View all Lord Faulks's debates with the Ministry of Justice
Criminal Justice and Courts Bill
Lord Faulks Excerpts(9 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Faulks
That this House do not insist on its Amendment 74, to which the Commons have disagreed for their Reason 74A.
Lords Amendment
“( ) No female, nor any male under the age of fifteen, may be placed in a secure college.”
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, as noble Lords will be aware, the other place was not persuaded last week by the amendment that this House put forward to prevent girls and boys under the age of 15 being accommodated in secure colleges. It voted by a margin of 316 to 194 to disagree with the amendment.
The Government remain of the view that it is not right to prevent girls and boys aged under 15 benefiting from this pioneering approach to educating and rehabilitating young offenders. We are committed to this principle, recognising that girls and younger boys are already safely accommodated together on the same site in both secure training centres and secure children’s homes, which together with YOIs make up the youth custodial estate.
Noble Lords will remember from previous debates that no final decisions have yet been made as to who will be accommodated in the secure college pathfinder that is due to open in 2017. This decision will be taken closer to the time and based on the composition of the youth custodial population. Responsibility for individual placement decisions will remain with the Youth Justice Board, which decides on a case-by-case basis, and is informed by the advice of the local youth offending team, where each young person should be accommodated while in custody. I know that a number of noble Lords remain firmly opposed to secure colleges or, in any event, this secure college. The Government are aware of their concern and respect their views, although they do not agree with them. This amendment is not about secure colleges generally but about under-15s and girls, and I am sure that noble Lords will be focusing on this particular issue.
Noble Lords will be aware from previous meetings that I have held with interested Peers and from discussions in the House that more vulnerable groups—such as girls and under-15s, should they be placed there—will be separately accommodated in smaller living units at the pathfinder secure college, and can also be separately educated. Following earlier discussions with interested Peers, we amended our site plans to provide further protection, and additional and separate outdoor space for the more vulnerable young people accommodated at the pathfinder.
I have also previously made a commitment in this House that neither girls nor under-15s will be placed in the pathfinder secure college from its opening and that, should the decision be taken to place them there, their introduction would be carefully phased. My colleague, the Minister for Prisons, Andrew Selous, reiterated this same commitment to the other place last week. Nevertheless, despite these safeguards and commitments, the Government recognise that some concern remains. In particular, this concern is focused on the potential accommodation of girls and under-15s on the same site as older boys, and how the different groups would be kept safe and their different needs attended to.
To provide Parliament with further reassurance on these points, we are today committing to the Secretary of State laying a report before Parliament, and publishing that report, before either boys aged under 15 or girls are placed in the first secure college where they would be accommodated alongside older boys aged 15 to 17. This report will describe the arrangements in place at the secure college for the detention of girls and under-15s. In particular, it will set out the safeguards in place to protect these groups and the facilities and services available to meet their educational and rehabilitative needs and to promote their health and well-being. This report would therefore include detail on: the accommodation and supervision of girls and under-15s; how they will be educated and the focus of this education; the interventions available to tackle their offending behaviour; the provision for meeting their physical and mental health needs—a particular concern that I know has been expressed in the course of debate—and promoting their emotional well-being; and the safety arrangements at the site to ensure that neither group is at risk of intimidation or violence.
In producing this report, the Secretary of State would consult with the Youth Justice Board, Her Majesty’s Inspectorate of Prisons and Ofsted. The report would be laid before Parliament and published at least two months before the first occasion on which it was intended that boys aged under 15 or girls were to be placed in the first secure college to accommodate these groups on the same site as older boys.
Lord Willis of Knaresborough (LD)
On an important point at this juncture and before he goes any further, will the Minister give an assurance that, when that report is produced, its recommendations will not be implemented in any form until there is an affirmative vote on those recommendations in both Houses of Parliament?
Lord Faulks
No, I will not give that reassurance. I hope noble Lords will none the less welcome this significant commitment, which will provide considerable transparency on the Government’s plans for the accommodation of girls and under-15s in secure colleges. I also remind noble Lords that, in addition to this commitment, there is of course the ongoing scrutiny of secure colleges provided by the inspectorates, Her Majesty’s Inspectorate of Prisons and Ofsted. In light of this commitment, I take the opportunity to reaffirm that keeping young people safe in custody will be the top priority in secure colleges, just as it is elsewhere. The Government are confident that secure colleges will deliver a step change in the culture and outcomes of youth custody and that, with the right facilities and precautions, both girls and under-15s will be able to benefit from this new approach.
I hope that this further significant reassurance demonstrates the Government’s commitment to protecting properly these vulnerable groups in secure colleges, while meeting their specific needs and enabling them to access enhanced provision. I hope this gives the House confidence not to insist on its earlier Amendment 74. I look forward to hearing the views of the noble Lord, Lord Ramsbotham—and, of course, the views of other noble Lords. I hope that, with the assurances I have given, he will in due course be able to withdraw his Motion to insist on Amendment 74. I beg to move.
Motion A1
Lord Storey (LD)
My Lords, I apologise for not speaking before but I have faced two family bereavements. The Government ought to congratulate themselves that the number of young people held in secure accommodation has dramatically reduced. These young people obviously need education. Some 70% are special needs pupils; 20% are statemented. They are also terribly emotionally damaged. They are children; I am not talking about youths or young adults. A 12 year-old child can potentially be hundreds of miles away from the thing they need most—the love of their family and friends. Could the Minister say whether, if this custody provision—we are told it is Europe’s largest—goes ahead, any provision will be made for travel costs for those parents wishing and perhaps hoping to visit their children on a daily basis?
Lord Faulks
My Lords, this has been a lengthy debate in which we have had some important contributions from a number of noble Lords, some of whom have been with us for the whole journey of scrutiny and some of whom have made their first appearance today. I am sorry that more noble Lords were not able to participate in the very considerable number of meetings in which the Government explained what they were doing. We answered many of the questions which have been raised by a number of noble Lords for the first time today. We answered them in correspondence. We also had a number of meetings in which we went through the plans. While I do not wish any disrespect to those noble Lords who have asked a number of questions to which I have already given the answer in various contexts, I hope they will forgive me if I refer significantly to the debates that have already taken place at Second Reading, in Committee and on Report, and to various letters to all Peers. I will try to keep my remarks as short as is consistent with answering the general burden of the debate.
I was disappointed that my noble friend Lord Marks said that there had been no opportunity for parliamentary scrutiny. I accept that the scrutiny may not have satisfied him or other noble Lords that the plans are appropriate, but scrutiny there has been.
Lord Marks of Henley-on-Thames
I am sorry to interrupt my noble friend but he has plainly misunderstood what I was saying. I am not complaining about the scrutiny of this Bill. I am complaining about the lack of a parliamentary approval proposal from the Government before girls and under-15s can be placed in secure colleges.
Lord Faulks
I am grateful for that correction or clarification by the noble Lord. It is important to remember that the context in which the Government are approaching the secure colleges is, as my noble friend Lord Storey correctly pointed out, that we have a reduction in the youth estate, which is to the credit of the Government, the Youth Justice Board and all those concerned with the criminal justice system. However, we have a small number of young people who, for various reasons—and those reasons have been touched on by a number of noble Lords—present many different problems and issues and need to be detained in one form or another on the youth custodial estate.
We cannot be satisfied with the fact that 68% of young people reoffend after leaving custody. Nor can we be satisfied that education is not a greater focus of the efforts to turn these young lives around. In fact, it is 74% where secure children’s homes are concerned. For these reasons, we do not wish to exclude any groups from accessing the benefits that we believe the new model of custody will deliver.
I wonder how much there is, in fact, between the Government and many noble Lords who have spoken. The Government are indeed careful and wary, for all the reasons that have been outlined, before sending those aged under 15 or young girls to these secure colleges. That is why I gave a commitment to the House that we would not cause them, in any circumstances, to be sent there at the beginning. It is also extremely important to emphasise that they will be sent there only if the Youth Justice Board and the youth offending teams think that it is appropriate, because all those bodies and the Government recognise precisely the points that have been made, namely that these young people are extremely vulnerable and that it should only be—
The Earl of Listowel
I am grateful to the Minister for giving way. I have heard him make this assurance previously. I ask him to bear in mind the case of Joseph Scholes. This was a young man in care. He was in a children’s home. He was involved in a gang that stole a mobile phone. It was determined that he should be placed in custody. The court recommended that he should be placed in a local authority secure children’s home. There were not sufficient places available, so I think he was placed either in an STC, a secure training centre, or in a YOI. He took his life after that. Realistically, one has to recognise that the YJB and others are under severe financial constraints and will perhaps be even more so in future. While they may wish to do the very best for every individual child, if these spaces become available there will be great pressure for them to be used.
Lord Faulks
These institutions are important. Those who have seen the plans will appreciate that they are bright and barless. In answer to some of the points made, they also provide a separate, small group of 10 to 12 units for girls and under-15s, if they are placed there, to ensure a degree of separation for them. As for the provision of medical attention, there is to be, as those who have seen the plans will know, a rather sophisticated provision of mental health, provided by NHS England, as well as physical health and dentistry—which should in fact, I respectfully suggest to noble Lords, more effectively address health needs than they probably are in the community or in any of the other institutions that currently exist in the youth custodial estate.
I was asked a large number of questions, particularly by the noble Lord, Lord Carlile, and my noble friend Lord Lester, essentially saying, “What is the hurry? What is the foreseeable future? Why do you want to have this provision approved now? Can we not wait until there is a subsequent Bill?”. The answer is this: we have parliamentary approval to set up these secure colleges. I know that many noble Lords do not approve of this, but that issue is now no longer before the House. If the colleges are satisfactory and meet the approval of the inspections, we wish to allow those who may benefit—provided all the safeguards have been followed—to take advantage of that institution.
My noble friend Lord Lester asked where my friend the Minister, Andrew Selous, answered the points made by the noble Lord, Lord Ramsbotham. I refer him to cols. 101 and 102 of Commons Hansard, rather than reading it all out. During the course of his peroration, Mr Selous said that, as the father of three daughters, he would not wish to deny them the opportunity to go to a secure college. I would not, perhaps, go that far. However, the point that he makes is an important one. We should not, provided that the secure colleges are satisfactory, discriminate against girls having the possibility of taking advantage of what we solemnly believe will be a satisfactory educational provision.
Of course the noble Lords say that there should be an affirmative or a negative procedure. It will not be forgotten that this was a case in which there was a loss by one vote in your Lordships’ House, and then it was reversed by a significant number in the House of Commons. It might have been thought that the Government would simply ask this House to think again. We have been endeavouring to provide some assurance. The Secretary of State will indeed provide a report. As I have indicated, he can consult whomever he thinks is appropriate before providing a report as to why he thinks it necessary, if indeed he comes to that conclusion. He may well come to the conclusion that it is not appropriate; that remains an option.
I am sorry that there has not been an acknowledgement that the Government have tried to engage with interested Peers on this issue. I know that the noble Lord, Lord Ramsbotham, is extremely hostile to secure colleges as a whole, but we ask him to bear in mind the essential failure—we regretfully say—in the current arrangements to answer the real problems that have been identified in that relatively small number of people who are in the youth custodial estate. We urge him to ask himself whether it is really appropriate to deny this vulnerable but important cohort of people the opportunity—if it is appropriate, with all the safeguards that we have examined—to take advantage of those secure colleges. We want them—if it is appropriate—to have that opportunity. We can assure the House that these safeguards will be gone through and furthermore that there will be a report that will make the Secretary of State’s reasoning transparent.
Lord Richard (Lab)
My Lords, I plead guilty to the indictment framed by the noble Lord of not having taken part in any of the previous debates. Having listened to the debate this afternoon, I wish that I had. The noble Lord keeps saying “if it is appropriate” and that we must not deny young girls the great opportunity that these colleges might provide. Will the Government say that they will not put any girls under 15 in these establishments until the Government have established that these colleges work and would be of benefit to those children?
Lord Faulks
As I indicated, there are inspectorates —HM Inspectorate of Prisons, Ofsted, the Youth Justice Board and youth offending teams—and now we have a prospective report by the Secretary of State. The noble Lord, Lord Ramsbotham, said that the Secretary of State wished to put these people in the secure colleges. With great respect to the noble Lord, what happens is that if they commit offences and a court has decided that it is appropriate to send them there, subject to all the other safeguards, they will be sent there. The Secretary of State has nothing to do with them being sent there. His task is to provide appropriate establishments.
I respect the concern that noble Lords have quite rightly shown for this cohort—and I fully accept that they have exhibited it not just now but at various stages during the examination of these legislative provisions. They have expressed their view, those views will have been communicated to the Secretary of State, among others, and this House has made its position clear. Nevertheless, having considered the matter carefully, I ask the noble Lord to decide not to press his amendment.
Lord Glenarthur
My Lords, before my noble friend sits down, perhaps he would reconsider the issue of whether it is more appropriate to go to the affirmative resolution rather than the negative. I have sat on the Front Bench for many years with many of my colleagues here and have been through the same debate, but often it is wiser and more sensible to try to pursue something that allows Parliament to have that debate rather than simply to brush it aside. I understand the negative procedure only too well, and I hope that on this point my noble friend will reconsider.
Lord Marks of Henley-on-Thames
My Lords, before my noble friend answers that question, will he confirm to my noble friend Lord Glenarthur and the whole House that the present proposal is that there would be no parliamentary procedure at all apart from the laying of a report for consideration—no vote, no regulations and no SI is proposed?
Lord Faulks
I thought that I had made it reasonably clear that there will be the laying of the report. That is the limit to which I committed and I commit to it now. It is beyond what we committed before. It may not be enough for some noble Lords but none the less the report, informed as I have said that it will be, will enable Parliament to consider whether it is appropriate.
Lord Ramsbotham
My Lords, I am very grateful to the Minister for his summing up but, as he will no doubt understand, I do not find it convincing at all because he has answered absolutely nothing. We have heard nothing about the details of this college and we have never heard any evidence of why the Government think that it is appropriate. We have heard yet again about education, and about a healthcare centre, but we have not had an acknowledgement of treating all the multiplicity of problems that these children face.
We keep hearing the word “might”, because there is no evidence to show that this approach has worked. In the absence of that, it would be irresponsible of us not to press further. I am extremely grateful to all noble Lords who have taken part in this very stimulating debate. They have shown yet again not only the vast amount of expertise in this House but the degree of compassion felt for the people we are talking about. I was particularly struck by the noble Baroness, Lady Williams, questioning why it was that this Government chose to rule Parliament out of any consultation on these issues. Here again, the offer of a compromise was thrown down and rejected by the Minister. I feel that I have no alternative than to seek to test the opinion of the House.
Lord Faulks
My Lords, we turn to Part 4 of the Bill, and specifically the clause concerning procedural defects highly likely to have made no substantial difference to the outcome of a judicial review. I pay tribute to this House, and the expertise shown in many corners, which has been brought to bear on these clauses. We have heard from my noble and learned friend Lord Mackay of Clashfern, who brought his unrivalled experience to the debate. He referred to comments of a former Secretary of State, the noble Lord, Lord Adonis, who wrote in his book, Education, Education, Education:
“However, if Parliament was navigated quickly and unobtrusively, the same was not true of the courts. As soon as academy projects became public, opponents seized on judicial reviews as a means to stop them. Ultimately they failed, but only after years of lengthy, expensive and immensely distracting court actions”.
My noble friends Lord Horam and Lord Tebbit told us that judicial review does not exist in isolation and has an impact on projects in the real world that deliver employment to people and can significantly affect actual problems. There have, of course, been many contributions far less supportive of the Government’s proposals. For example, the House has heard from a number of distinguished judges with enormous experience of judicial review, including the noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Woolf. We heard from the noble Baroness, Lady Campbell of Surbiton, of the important role that judicial review can have when used properly.
Throughout, the Government have listened carefully—more carefully than some of our more trenchant critics suggest. The amendments that we propose in later groups bear, I hope, testimony to that. In the case of financial information we have proposed an amendment, despite having won a substantial victory in the other place. However, I must say to the House that on the matter of this clause the Government have not been persuaded that any amendment is required.
When used appropriately judicial review is an essential part of the rule of law, by allowing for the lawfulness of public bodies’ actions to be tested in court. But it is an area that has been misused, with claims brought with no real prospect of success, and with a view to delaying and adding expense to perfectly lawful acts that are simply disliked. Such challenges place significant burdens on the public purse and strike at the economic development that the country badly needs.
The Government want to restrict judicial review, not abolish it—I must emphasise that. Rather, we want to restrict it to cases that have real merit. Judicial review should not be used as a campaigning tool. It should be concerned with unlawful activity that has or is likely to have a real effect on outcome.
Clause 64 is intended to filter out claims brought on technicalities highly unlikely to have made a substantial difference to the claimant’s position earlier and at a lower cost. Your Lordships’ amendments would, in the Government’s view, undermine the clause. The elected Chamber rejected the House of Lords amendment, voting by 319 to 203 last Monday.
As this House amended it, Clause 64 would permit the court to refuse permission or a remedy where it was considered highly likely that a complained-of flaw would have made no difference to the outcome for the applicant. The Government’s formulation would require the judge to consider an argument that it was highly likely that a complained-of flaw would have made no substantial difference to the outcome for the applicant, and to refuse a remedy or permission where he or she was satisfied that the argument was made out.
Although the clause introduced duties on the court, it retained significant judicial discretion—primarily, of course, in deciding when the “highly likely” threshold is met in a particular case, and where the court is of the view that there is any significant doubt that it is, it can act as it thinks fit. Indeed, we have deliberately avoided defining “highly likely” in the statute, meaning that the judiciary will determine how it will apply in practice.
In the House of Commons, in speeches pitched against the Government’s original position and in favour of the amendment made by your Lordships’ House, it was said that we would be putting the judge in the position of the decision-maker. I simply fail to understand this point. The judge is not being asked to second-guess the decision of the administrative body; he or she is being asked simply to consider whether it is likely that there would have been a substantially different outcome if the impugned decision or the conduct had not occurred. This is very much judicial territory. Judges perform such assessments in all sorts of different circumstances.
The second point made in the House of Commons was that the judge would not be able to come to a decision without a mini-trial or dress rehearsal. I do not accept that point either. At the moment he or she will have to decide in appropriate circumstances whether it is inevitable that the outcome would have been unchanged. Now the bar is slightly higher but the process by which the judge arrives at the conclusion will be very similar, if not the same.
The noble Lord, Lord Pannick, referred to public interest. Of course, public interest plays a part in a number of different legislative provisions in different contexts. But we believe that the threshold established in this clause does best serve the public interest. It will ensure that judicial review cases that progress beyond permission stage are not purely academic and are not based on minor technicalities highly unlikely to make any difference. We therefore think that this strikes the right balance. Indeed, the House’s amendments to the clause could serve to undermine the intended effect, and underestimate the significant safeguards built into the clause as agreed by the other place.
There is a balance between imposing appropriate duties to ensure that these reforms have the intended effect and preserving the important role of judicial decision-making. I strongly believe that this clause gets the balance right between allowing judges to decide matters of judicial review and nevertheless providing appropriate safeguards to ensure that inappropriate and meritless judicial reviews do not proceed further. I beg to move.
Lord Phillips of Sudbury (LD)
Before my noble friend sits down, will he be so kind as to give a little more information about the underlying justification, as he puts it, for the rejection of this amendment? That is, he put it in terms of abuse of the judicial review process, technicalities, academic applications and so on. Has he any statistics or indications as to the extent of that abuse?
Lord Woolf (CB)
My Lords, it is always important to listen to what is said by the noble Baroness, Lady Campbell of Surbiton. She has an insight into these matters that Members of the House who come from a legal background, as I obviously do, do not have personal experience of. It is very apposite that she should have said what she just said. I hope that the House will heed her plea.
Knowing that the noble Lord, Lord Pannick, would have to go to Moscow, I am bound to say that I had prepared for him not to be here, and therefore had prepared a much longer speech than I am going to give. But I would like to add just one or two things. As I am sure your Lordships understand, this is a very important issue. If noble and learned Lords have any ability to assist and advise the House, then it was clear in the earlier stages of the Bill that this was something they thought was wrong. They gave their reasons, and I played a leading part in that. The reason we did so was that we thought it was going to be bad for justice, for the citizens of this country and for the reputation of this country as a leading adherent of the rule of law. Judicial review is all about the rule of law. Every application that has any prospect of succeeding initially has to prove that something happened which the Lord Chancellor and the judges would regard as being unlawful. So if you are refusing relief in this situation, you are doing it with regard to something which has been illegal, or is in a position where there could be illegality.
The second thing to remember is that the procedure for judicial review is an exceptional procedure, designed initially by the judges, but then enacted in what was the Supreme Court Act and is now the Senior Courts Act 1981, in Section 31, which sets out the position as to the jurisdiction of the courts. That section makes it clear that heavy responsibilities are placed upon the judiciary with regard to its operation. The safeguards are there, because they have a very heavy responsibility of holding the balance. The amendment we are now considering is a small one. It is in relation to the first amendment, which I am addressing. As required by the Government, the judge—the word in question is— “must”. As required by the amendment, the word is “may”. The difference between us is “must” and “may”. As you have already heard, in the House of Commons—and I am going to come back to this—the Lord Chancellor misled the House. I have to say that. I am sure the Minister will accept it. He said to it that each of the amendments—
Lord Faulks
I am only interrupting to agree absolutely with what the noble and learned Lord said. The Minister has in fact written to say he was in error. The letter has, I believe, been placed in both Houses of Parliament, but there was a mistake and the noble and learned Lord is quite right to draw attention to that.
Lord Woolf
I am grateful to the Minister for making that clear. I was not aware that the Lord Chancellor had done so, and I thought it was very regrettable that he should have failed to do so. It is extremely important that the one Member of the lower House who has a statutory responsibility of a particular nature with regard to the rule of law and the administration of justice should have made that mistake, because he dealt very summarily and quickly with the position which was before this House in some detail. We have heard the relevant passages of what he said.
I recall that on, I think, 5 December—I have the reference to it if it is required—the Minister took care to say that there was a convention that the courts, Parliament and Government each respected each other and therefore did not unnecessarily criticise each other. I was well aware of that convention but I would suggest that it is much wider than that. It is a convention that, in respecting the other arms of government, each of them—I include the judiciary here as an arm of government—will not trespass on the other’s area of territory or a different part of the arm unless there are particular reasons for doing so. One can see why that should be so. In the courts, we are very particular indeed not to trespass on the privileges of this House and the other place—and they should be equally sensitive.
Knowing what had been done by this House, which appeared to me at any rate to be so clearly necessary, I read with great care what was said in the lower House. I must say that I was very concerned that the Lord Chancellor in the lower House had indicated the three reasons that noble Lords were told about by the noble Lord, Lord Beecham, when he read the speech, including one that clearly amounted to a reflection on the judiciary. I have heard many protestations that the Lord Chancellor greatly respects the independence of the judiciary. However, when he talked about its difficult task of administering judicial review, as it does, day in and day out—and the task of presiding over judicial review is allocated to earmarked judges, so we can be sure that the matter will be properly considered—he was concerned that it was never intended to put the courts above the elected Government in taking decisions over the essential interests of this country. That is one of the problems that the Chancellor was concerned about. I would gently suggest to the Lord Chancellor, if he is writing apologies, that that is another matter that certainly calls out for an apology. It is wholly inconsistent with his statutory responsibilities under the Constitutional Reform Act. That is something that, having been said, either persuades the House or does not. However, if the other place was misled as to the background, what is at first sight a very difficult decision to understand is explained. I suggest that, because the matter was not put fairly to the other place, that is another very good reason why the matter should be returned to it.
Lord Deben (Con)
My Lords, I do not want to disappoint the noble Lord opposite but it does not need to be a particular party to see that there is something deeply wrong with what is being presented today. I am sorry about the tone that he adopted. I think it was entirely wrong and he may have done his cause and my cause a great deal of harm as a result.
The Government have not distinguished themselves by the way in which they have listened to this House or by the way in which they have thought through what they have presented. I remember the comments of the late Harold Macmillan that it is a mistake to revolt on more than one thing at a time because it confuses the Whips. I am concentrating on this particular issue because it is the most important issue of all. I think my noble friend misunderstood something I said earlier as criticising him. I do not criticise him at all. I think he has presented the case in this House as well as humanly possible, with a courtesy which one would expect and which he has fully expressed. The trouble is that there is not a case for what is being proposed. That is the difficulty. I do not think I have ever heard so damaging an apology as the one which was revealed during the course of the speech of the noble and learned Lord, Lord Woolf—that the Minister got wrong the only argument of any importance that he presented and then tried to uphold in this House the decision of the other House which would not have come about except with the exercise of the Whip. That would have done credit to the Chief Whip on the Benches opposite during his period in the House of Commons. It is very serious indeed. We have to say no to the Government’s determination. We have to support the proposal of the noble Lord, Lord Pannick, because we have to give the other House an opportunity to reverse the decision that it made when it was not in full possession of the facts. That is the first thing we have to do.
My noble friend said that all that is happening is that the bar is being raised slightly higher. I am not a lawyer. I am proud of not being one and am keen to enter into this discussion because sometimes it seems as if the only people who understand these things are lawyers. I think that most normal people understand these things and they understand them very simply. With the greatest of respect, the bar is not being raised slightly higher. Its nature is being changed. What is being asked now is that judges must make a decision which does not seem to be a proper decision for the courts in any case. Decisions of courts should fundamentally be on the facts of the law—on what something means. But that is not the decision that is being asked for here. The judge is being asked to decide that somebody’s unlawful act was highly unlikely to have affected the people who would otherwise have been affected. That is a curious thing to ask a court to do. Surely a court ought to be asked to say whether a proposal is so unimportant or vexatious that it should not occupy the time of the court. That is a perfectly reasonable thing to say. If judges had constantly allowed people who wanted to argue how many angels danced on the point of a pin, then I would have accepted that we needed to do something about it. However, when my noble friend was challenged for the statistics on which this very serious proposal was based, he honestly said that he had not got any.
Your Lordships might reflect that if I were presenting a proposal to a board of directors of a public company and I said I wanted fundamentally to change the product they had—its constituents, the way it was advertised, the market for which it was being manufactured—I would have to present some figures. I would have to say how many people did not like the product and thought that it needed to be reformulated. I would have to say how often the product had poisoned people or upset their stomachs. I would have to produce some kind of basis.
Lord Faulks
I am grateful to my noble friend for giving way on this point. I said that I had no statistics; I did not say that I had no examples.
Lord Deben
I have listened carefully to the examples that my noble friend put forward, but has he any more? I do not think that any of them have been convincing so far. I am happy to give way to him if he is prepared to give us some new examples.
Lord Faulks
If the noble Lord had looked at the website in which all the examples were set out in the build-up to the Bill, he would have read them. I cannot read them all out now; it would be an inappropriate use of the House’s time.
Lord Deben
I am sure that most of my noble friends, and noble Lords generally, have seen those examples. I have to say to my noble friend that they are not very convincing. They are not sufficiently great to suggest that we should change the law of the land in this very particular way. That is my concern. I can see that it is easy to say, “Look, there have been a lot of judicial reviews that have not really been necessary”, or to say that we really need to shorten the time to build and to develop. I have a long history of being keen on building, developing and getting this country ahead of its neighbours, and of being unhappy about the way that we seem to take such a long time to do things. I am therefore a natural voter for this. I am on the side of the Government; I would like to be with them. However, this is not the way to do it. There are ways in which it could be done that would not break the fundamental reason for judicial review.
I come to my third point. During an earlier debate I said that the foundation of British law is that no one is above the law. I am a great enthusiast for King Charles the Martyr, but it was perfectly right to say that he should not be above the law. I think it extremely dangerous—I say this to my noble friend very carefully—if Ministers should feel it reasonable to break the law because it is not really very important, or because it does not really have much effect. Breaking the law, if one is in a position of authority, is ipso facto a serious thing to do. Having been a Minister for 16 years, I would expect my civil servants to tell me very clearly if I proposed something that would break the law. I would take that very seriously indeed. I do not believe that ordinary people will respect the law in the same way that they do today if they think that Ministers have a special arrangement, which is that when they do things somebody has to show that it was really serious, really upset somebody or really made a difference before the courts can adjudicate on it.
I come to my fourth point, which I must say is, to me, very serious indeed. We have to be very careful about legislating in a way that suggests that we do not have trust in the judges who make decisions. Of course, this might be thought to be a dangerous place to say this as there are so many judges here, but it is the thing that distinguishes us from many Administrations: there are very few people who will not say that the judges in this country make decisions without fear or favour. If judges have made decisions that judicial review cases should be heard, I would prefer to rely on them than on people who are parti pris—that is, the Ministers—who find those decisions embarrassing. Ministers of any political party ought to be embarrassed if they break the law. That is an essential part of defending the law.
Lord Faulks
My Lords, I begin my concluding remarks, which will be short, by saying how much I agree with much of what has been said during the course of the debate. First, the Government and I have great respect for our judges and their capacity to deliver justice in the course of judicial review and in any other field. I also have, of course, profound respect for the rule of law. In particular, I respect the role of judicial review in upholding the rule of law. I do not for a moment believe that anything that we do in Parliament should provide any form of carte blanche to a Minister or any other public body in how they conduct affairs.
The Government very much appreciate the careful consideration of the Joint Committee on Human Rights and the Lords Constitution Committee and their respective reports. They were not referred to by anybody on either side during the course of the rather truncated House of Commons debate. I do not know the extent to which they were taken into account sub silencio, but they are important and I fully acknowledge that.
Nor do I suggest that failures of consultation are not—or are not capable of being—serious matters. It is not the Government’s contention that failures to consult should be regarded necessarily as trivial—far from it. The clause refers to “substantially” and the Government’s intention is to ensure that judicial review focuses on issues that might have made a difference, not mere technicalities. We do not consider that the clause will give public authorities carte blanche to act unlawfully. No decision-maker will deliberately do something unlawful on the basis that they might hope that they can survive judicial review on the basis of the inevitability of the outcome or the outcome being “highly unlikely”.
I accept what the noble and learned Lord, Lord Woolf, said about the importance of declaratory relief and how it can play an important part in ensuring that public bodies understand their rights and responsibilities. If a judge looking at a particular case considers it important that there should be a declaration, he or she is most unlikely to decide that the case should not go further forward.
However, as my noble and learned friend, Lord Mackay, so correctly said, there is nothing revolutionary about a judge looking at a case on the question of what the outcome would have been. In particular, I refer the House to the well known case of Cotton v Chief Constable of Thames Valley from 1990 and a number of other cases that had the same effect. It was decided that the courts should look beyond the narrow question of whether the decision was taken in a procedurally improper manner and consider the wider question of whether a decision properly taken would or could have benefited the claimant.
Much of the law in this area is concerned with consultation. While consultation can be very important, if it is a trivial omission, it is appropriate that the court should look and be capable of looking at a particular case and saying, “I do not think it is an appropriate use of public resources or an individual’s resources for a judicial review to proceed, notwithstanding the putative unlawfulness, if in fact it would have made no difference or was highly unlikely to make a difference”. That is why I agree with much of the rhetoric around this important point of principle because what the Government are inviting the House to approve is a minor change to the existing law. We are not abandoning judicial review. We are not inviting the Government, local government, Ministers or public authorities to ride roughshod through the law. We are simply saying that judicial review may be reviewed. Judges can be relied on to prevent abuse in this regard, but I suggest that it is not inappropriate for Parliament to say, “If you, as a judge, consider it is highly likely that it would make no difference, we invite you, on reviewing the facts and not fettering your discretion, to decide that the case should go no further”.
Baroness Butler-Sloss
Before the Minister sits down, I wish to ask one question: how does he answer the second part of the comments of the noble and learned Lord, Lord Mackay of Clashfern?
Lord Faulks
It is a matter entirely for the House. The whole of the speech was before the House of Commons. It was clearly regrettable. The Lord Chancellor has written a letter which is deposited in both Houses. This House will take the view that it thinks appropriate.
Lord Pannick
My Lords, I am very grateful to the Minister. He has been put in a quite impossible position, not, I think, for the first time, and I sympathise with him.
There are two central points here. The Minister very fairly accepted that the Lord Chancellor inadvertently misled the House of Commons when it considered the amendment that was approved by your Lordships. The Lord Chancellor misled the other place on the very issue that is at the heart of this amendment. He wrongly suggested that there is an exceptional circumstances provision in this clause which confers discretion on the judge. That alone is reason enough for this House to invite the other place to think again, and to do so on the basis of an accurate statement by the responsible government Minister as to the terms and effect of the clause that he was putting before the House of Commons.
However, that is not all. The public interest amendment is essential to the rule of law. That a Lord Chancellor should regard the need for a fair procedure and legality as unimportant technicalities which should be excluded from judicial control is, to my mind, profoundly depressing and alarming. I say to the Minister that that is not a matter of rhetoric but of substance.
The noble and learned Lord, Lord Mackay of Clashfern, suggested that this clause is a development of the current law. However, the change is not merely to alter the test of inevitability to a test of highly likely; the vice of the clause that we are debating is that it imposes a duty on the court in all circumstances to throw out judicial reviews without retaining any discretion in the public interest. The Lord Chancellor and the other place should be invited to think again about the need to retain judicial discretion in the public interest, as Motion B1 states. I wish to test the opinion of the House.
Lord Faulks
That this House do not insist on its Amendments 103, 104, 105 and 106, to which the Commons have disagreed for their Reason 106A, but do propose Amendments 106B and 106C in lieu.
Lords Amendments
“(3AA) Tribunal Procedure Rules under subsection (3)(b) that specify information identifying those who are, or are likely to be, sources of financial support must provide that only a person whose financial support (whether direct or indirect) exceeds, or is likely to exceed, a level set out in the rules has to be identified.
This subsection does not apply to rules that specify information described in subsection (3A)(b).”
Lord Faulks
My Lords, we now come to Clause 65 and its sister clause, Clause 66. As introduced, Clause 65 would do no more than see a person provide financial information with their application for judicial review. This will prevent others from sheltering from their proper costs liability at, almost invariably, the expense of the taxpayer. As introduced, Clause 66 would do little more than require the court to consider that information.
The House’s amendments to Clause 65 would allow an applicant to be granted permission where they had not provided financial information with their application for permission, with nothing more said about the circumstances in which that would be appropriate. Similarly, the House’s amendments to Clause 66 would mean that, even where that information had been provided, the court need not consider it, nor consider whether a person identified should have costs awarded against them. Therefore, conceivably, a person might control a judicial review’s course while sheltering behind a shell company, precisely to avoid proper costs liability, and the judge could be given no information about that.
We think that those amendments, although undoubtedly well intentioned, simply go too far. The Government have, however, been persuaded to table an amendment, even after the other place so resoundingly supported the Government’s original clause, to give noble Lords additional reassurance that the Government do not intend Clause 65 to apply inappropriately or unhelpfully. I trust that the Government’s actions with regard to this clause, and the amendment itself, will give noble Lords the comfort they need to support the Government.
We have been clear throughout that we intend an approach which strikes a balance between the court having the information it might find helpful when deciding costs and avoiding providing it with too much information. The amendment provides comfort on that, by requiring any procedural rules which give effect to the clause to include a de minimis threshold. When providing the court with information, an applicant would not have to identify any person who had provided contributions below that threshold.
I am sure that noble Lords will understand that we are not in a position to bind the hands of the procedural committees that will make the rules as to what the figure will be. That would be as inappropriate here as it would be with regard to any other procedural rule. I am comfortable that, whatever figure is ultimately adopted, it will ensure that the rules are not overly burdensome or require an excessive level of investigation. Quite simply, setting the threshold too low would result in flooding the courts with unhelpful paper that would not suit the Government’s purposes. I can happily confirm that the Government will, of course, take into account evidence and views appropriately as they come to a view on what figure is appropriate.
It is important to emphasise that nothing in Clause 65, which would make mandatory the provision of information on an application for permission, would require any level of financial resources to be available before permission can be granted. This is not about taking discretion away from the judges but about giving them the information to enable them to take fully informed decisions.
We have not tabled an amendment to Clause 66 as we are satisfied that it continues to strike an appropriate balance. The clause as the Government wish to see it would not require the courts to award costs against a person or a type of person. It simply does not affect the judge’s discretion as to costs, but it would place the court under a duty to consider the information that has been provided and whether persons identified in that information should face costs—something that they would inevitably do in any event. What decisions it takes having considered that information is a matter for the court.
For the sake of absolute clarity, I am happy to repeat that there is nothing obliging courts to make costs orders against a person identified in that information; we require only that the courts have the full picture. The alternative is to say that the judge should make an order with a less than full picture and with less than full transparency, and I am not convinced that that is desirable.
Perhaps I might make one further thing clear. These clauses and the amendment do not alter the court’s existing powers on costs. The common-law position would remain. More than mere funding will be required before a third party is made liable for costs; for example, those parties who are not only funding but are seeking to drive the litigation or to benefit from a potential remedy in the case might be ordered to pay costs. We are concerned that the courts have the wherewithal to identify who is driving litigation—that people cannot shelter behind matters—but, equally, small contributions to a fighting fund, where those individuals do not expect to control the litigation, should not bring with them an obligation to declare that you have put a modest sum into a fighting fund. Therefore, you would not inevitably be liable for costs. In fact, you would probably not be liable for costs anyway but you do not have to disclose that information.
I hope that the House will not insist on its Amendments 103 to 106 but will accept Amendments 106B and 106C in lieu. I beg to move.
Motion C1
Lord Pannick
My Lords, the amendments that were approved on Report by your Lordships’ House by a majority of 33 arose out of two concerns about these clauses on financial information.
The first concern is that the judges would be prevented in all circumstances from granting permission to bring an application for judicial review unless the relevant financial information has been provided. As with Motion B1, on which your Lordships have just voted, so with this Motion C1 a degree of discretion is appropriate to permit the judge to decide that a case should be allowed to proceed in the public interest, even if some financial information has not been provided. An absolute bar is inappropriate in this context and the removal of all judicial discretion is inappropriate.
The second concern is about the effect of the provisions on people who contribute to the funding of a judicial review. The Minister’s helpful letter of 4 December to noble Lords explained that the Government wish to ensure that there is no “chilling effect” on contributions because of a fear by potential contributors that they will be ordered to pay the defendant’s costs. Therefore, as I understand him, the Minister has said that it is not the Government’s intention that those who provide small amounts of funds should be subject to costs rules, and that that will be ensured through rules of court.
As I understand it, the rules will state a threshold so that people contributing less than the specified amount would not need to be identified by the claimant and so would not be liable to be ordered to contribute to the defendant’s costs. That is all very laudable. The problem, however, is that the Minister has not told the House what the threshold level will be. If the level is too low, it will inevitably deter people from contributing to judicial reviews brought in the public interest because of the risk that the contributor will have to pay the defendant’s costs.
Funding judicial review has become much harder in recent years with the decline in legal aid. It is very regrettable that the Government should now wish also to impede the ability of claimants to fund judicial review applications by private contributions. I am not satisfied by what the Minister says unless he can assure the House that the threshold level will be sufficiently high that it will not deter modest or reasonable contributions to the funding of judicial reviews.
Lord Faulks
I am very grateful to the noble Lord for giving way. Perhaps he could assist the House by saying what he would consider a modest contribution.
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.
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.
Lord Marks of Henley-on-Thames
I have two questions for the Minister. First, will he clarify that the figures for claimants’ costs—and it is, of course, the claimants’ costs that are important when considering financial information—are those related only to straightforward cases? Secondly, will he confirm that I am right in saying that the level that the Government intend as a matter of principle should be reflected in the rules is a level of only a few hundred pounds—in other words, very small contributions rather than significant contributions from larger contributors?
Lord Faulks
In answer to my noble friend’s first question, I did use the word “straightforward” and that is entirely correct; I adhere to that. On the second question, I am reluctant to give figures because, for the reasons I have given and in terms of what we are talking about, it relates to a small contribution to a fighting fund. That would not be £10,000 to £15,000. I do not think it is appropriate to go beyond that. That is a matter that I will leave to the rule committee: it will arrive at an appropriate figure in the light of its experience.
Lord Pannick
My Lords, this is a really puzzling matter. The Minister accepts that a threshold figure should be included in the rules below which a contributor to the funding of a judicial review should not be liable to be identified or pay costs. That is a vital concession, because without it, private funding of judicial reviews in the public interest would not be able to continue. However, the Minister is unable to say what the threshold figure will be; he is not able to state any criteria by reference to which that figure should be determined, and he is reluctant, in answer to the noble Lord, Lord Marks, to say more than that it will be a figure less —significantly less, as I understand him—than £10,000 to £15,000. That, I suggest to noble Lords, is quite unsatisfactory in relation to the Government’s attempt to persuade this House not to insist on its previous amendment.
The noble and learned Lord, Lord Mackay of Clashfern, said that the rule committee will deal with this in an independent manner. However, the rule committee will no doubt be heavily influenced by what the Government say is the purpose of this. I am not suggesting that the rule committee is bound by what the Government say, but the Government will have a very considerable influence, particularly when there are no criteria set out in the amendment. In any event, there is also—as emphasised by the noble and learned Lord, Lord Brown of Eaton-under-Heywood—a vital need in these clauses to retain a degree of judicial discretion in this sensitive context. The Government wish to impose absolute duties again and I, in this context, as in the previous context of Clause 64, suggest that judicial discretion should be retained. I wish to test the opinion of the House.
Lord Faulks
That this House do not insist on its Amendment 107 and do agree with the Commons in their Amendments 107A, 107B, 107C, 107D and 107E in lieu thereof.
Lords Amendment
“( ) The High Court and the Court of Appeal shall have a discretion whether to order an intervener to pay the costs of a relevant party to the proceedings, and shall have a discretion whether to order a relevant party to the proceedings to pay the intervener’s costs.”
“( ) If a person who is an intervener in judicial review proceedings becomes a relevant party to the proceedings, the person is to be treated for the purposes of subsections (2) and (4) as having been a relevant party, rather than an intervener, at all times when involved in the proceedings.”
Lord Faulks
My Lords, Clause 67 concerns those who intervene voluntarily in a judicial review and would see the court award reasonable costs against them—both their own and those their intervention causes a party—in most circumstances. Your Lordships’ Amendment 107 to this clause would provide absolute discretion to order an intervener’s costs against a party, or a party’s costs against an intervener, or not. That is effectively the current position, which in practice allows interventions to be made with very limited risk of any cost implications of how that is done, often with the taxpayer left to meet the bill.
As this House acknowledged during the Bill’s previous stages, the Government accept that Clause 67 as introduced caused concern, and we listened with care to the arguments raised. However, we think your Lordships’ amendments to the clause go too far, and so we have brought forward our own amendment in lieu. Our amendment strikes a proportionate and sensible balance: giving interveners the right incentives to ensure that they do not intervene inappropriately and more certainty about when they will face costs; giving taxpayers the protection they need; and giving the judges the scope they need to apply Parliament’s will to the circumstances of the case at hand.
Our amendment in lieu would place the court under a duty to award costs against an intervener if one or more of four conditions were met. The first condition is that the intervener has usurped a party’s proper role, perhaps because they want to drive the litigation without accepting the responsibility for costs which this entails. The second is where the intervener has simply not been of significant assistance to the court. Perhaps the intervener has argued at length, placing the parties at considerable expense, without advancing the court’s understanding of the issues. The third is that the intervener will meet a party’s reasonable costs of dealing with the intervention where a significant part of their arguments are not germane to the court’s consideration of the case. They may, for example, spend much of their time in court pressing the importance of a cause in which they are expert, or indeed their own importance, with only a small amount of time spent focusing on the issues really at hand. Finally, the court will be under a duty to order costs where the intervener has acted unreasonably.
Following the amendment in lieu, Clause 67 will continue to give the court significant leeway when it comes to making costs orders. First, it will be for the court to consider whether any of the four conditions has been met, so it will look at the facts in every case. Secondly, and importantly, the amendment preserves the court’s role in deciding whether costs were in fact caused by the intervener and incurred by the party reasonably. Thirdly, where the court is of the view that there are exceptional circumstances which would make the award of costs under the clause inappropriate, it need not make an award. I am happy to be entirely clear that the exceptional circumstances carve-out would remain in the clause in light of the Government’s amendment in lieu. In fairness, that was not particularly clear in the debate in the House of Commons. Nobody said anything to the contrary, but it was not emphasised with sufficient clarity. Finally, Clause 67 quite purposefully would not affect the court’s discretion to invite an intervener to participate in a judicial review, which would take the intervener outside the ambit of the clause.
In the Government’s view, your Lordships’ amendments to this clause went too far in undermining their intended effect and perhaps underestimated the significant safe-guards built into the clause as agreed by the elected House. As such, the Government continue to be of the view that the first presumption in the clause—that a party must not, unless there are exceptional circumstances, be made to meet the costs an intervener accrues when making their intervention—should be retained as it was introduced and without amendment.
Nobody doubts that interveners can and do make a valuable contribution in a number of cases. They make a valuable contribution and can assist a court in deciding a case, but equally we think that it is appropriate that interveners should pause long and hard to think about whether they can truly add anything to a case and to make sure what they add is proportionate and sensible and provides assistance to the court. They should not act simply as a cheer-leader because it is an issue about which they feel strongly, and repeat all of the arguments that have already been made by one party; they should not expand the scope of the case beyond that which is before the court; and they should not, as a matter of routine, simply join in the case because it is the sort of thing that they feel strongly about.
We encourage focused interventions, but we do not wish to deprive judges of the interventions that are appropriate, nor do we wish to deprive them of the discretion which they have. We simply ask them to make up their mind whether these four conditions are satisfied. If one of those four conditions is satisfied, then they must order costs, unless there are exceptional circumstances. Judges are best placed to decide whether they have been given assistance, and we do not seek to usurp that discretion. We think that interventions can be useful; they can also be overlengthy and expensive. This is a moderate compromise, and a reflection of the anxiety which has been expressed by a number of noble Lords, and indeed, some Members of the other House, and I ask that the House accepts the amendments of the Government. I beg to move.
Motion D1
Lord Pannick
My Lords, I shall be brief, given the time, given that your Lordships’ House has debated this issue on two substantive occasions already, and because I apprehend that your Lordships’ House will be anxious to move speedily to a vote on this matter.
Judges have repeatedly emphasised how helpful they find the contributions of interveners to be. Courts already have ample powers, which they exercise to control who can intervene on what subjects and with what costs consequences. The Government have at no stage in the debates on this Bill in either House identified any cases whatsoever in which the courts currently lack adequate power to deal with abuse or misuse of interventions. This clause, even with the amendments approved in the other place, will inevitably deter interventions which the courts will regard, and do regard, as valuable in determining the results of judicial review. I simply cannot understand what the Lord Chancellor hopes to achieve by this clause. I suggest that this House should ask the other place to think again. I beg to move.
Lord Faulks
My Lords, it has been a short debate. The issues have been fully covered at previous debates and at previous stages. I am not going to prolong this debate, but the noble Lord, Lord Pannick, says that the Government have not identified any issue. I made a rather more lengthy speech at an earlier stage in which I did identify—or at least attempt to identify—what the Government were driving at by this amendment. It was indeed based—I have to declare an interest—on personal experience of lengthy interventions, which no doubt a judge with all good intentions envisaged being very minor, which turned out to be extremely major in terms of their volume. These involve lengthy skeleton arguments, volumes of authorities and lawyers no doubt seeking to justify their existence. This is not helpful.
Of course, judges are capable—it is perfectly true—of expressing their disapproval, of limiting those interventions by appropriate methods. None the less, those who are involved will have inevitably had to spend time in preparing the case, in the eventuality that all of these interventions will in fact be treated with considerable scrutiny. Perhaps the case may be lengthened.
We consider this is an appropriate compromise. It does no more than identify the sort of cases that judges should be looking at, and probably are looking at, to make an order against interveners in appropriate circumstances. There are exceptional circumstances and judges will know when they are helped and when they are not helped, but to suggest that all is perfect in the world of interventions is simply to ignore the reality.
Lord Pannick
My Lords, it is not an acceptable compromise for the Government to bring forward a clause, with amendments, which will undoubtedly deter the interventions which the courts currently find helpful. There are interventions from all numbers of persons and bodies, many of which have made representations to your Lordships that this clause will deter them from coming forward and assisting the court. I have seen representations from bodies ranging from Liberty to Buglife. They are concerned that they cannot, for financial reasons, seek to assist the court if they fear that, other than in exceptional circumstances, they are going to be liable to pay the costs under this provision. For that reason I respectfully suggest to noble Lords that we should ask the other place to think again about this vital matter. I wish to test the opinion of the House.