Criminal Justice and Courts Bill Debate
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Lord Beecham
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Criminal Justice and Courts Bill
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Lord Beecham
Lord Beecham (Lab)
My Lords, one of the most objectionable provisions in Part 4 of the Bill, which deals with judicial review, is embodied in Clauses 65 and 66, dealing with the provision of information about financial resources. Amendments 73G, 73H, 73M, 73Q, 73T, 73U and 73X in my name deal with this issue, alongside those in the previous group, which dealt with the procedural aspects covered in the Delegated Powers and Regulatory Reform Committee report and which we debated in somewhat curious fashion on Monday. Then, it will be recalled, we broke shortly before the dinner break business and the Minister had the unusual job of making a very short reply after the dinner break.
At Second Reading, the Minister described Part 4 as,
“a much needed rebalancing of the financial risk of bringing or driving a weak judicial review. We think it right that those who bring or choose to become involved in a judicial review should face their fair share of the financial risk that entails”.
The noble Lord went on in a minatory—or should I say “maxi-Tory”?—vein to say:
“Those who intervene in a case … can … add value … but we think it right that they should face the financial consequences of their decision to intervene”.—[Official Report, 30/6/14; col. 1542.]
This, as we will no doubt hear again today and heard at Second Reading, completely misrepresents the character of intervention, which, after all, requires permission from the court. It is very often provided in significant cases of public interest by reputable charitable organisations and equally often is found to be helpful to the parties and to the court. I cannot blame the Minister—the voice is the voice of the noble Lord, but the hands around the throat of judicial review are the hands of the Lord Chancellor.
Clause 65 requires an applicant for leave to apply for judicial review to disclose any information about the source, nature and extent of financial resources available, or likely to be available, to meet the costs of the proceedings. The nature of the information would, as we heard on Monday, be specified by rules of court effectively determined by the Lord Chancellor because, as was made clear on that occasion, the rules of court committee effectively has to implement what the Lord Chancellor desires to be done.
Amendment 73G is intended, on the assumption that Clause 65 stands part of the Bill, to provide for judicial discretion about the funding issue. I must concede that it is poorly drafted and the word “or” in the amendment should be replaced by “unless”.
Amendments 73H and 73M would remove the court’s duty to consider what information is, in the Government’s extraordinary formulation, “likely to be available”. “Who from?”, one wonders. Crowdfunding, charities, or repentant spouses of Russian businessmen deprived of tennis games with the Prime Minister? And what is meant by the test of likelihood? Come to that, what is meant by the test of availability?
Amendments 73Q and 73U would restore the court’s discretion in the matter of an order for a non-party to pay costs, while Amendment 73X would confine any surviving provision for the court to order costs to those who actually provide financial support rather than those likely or able to provide it, who may never have provided such financial support. It is of course interesting that no equivalent provision in relation to costs appears to apply to those who might benefit from—or even, I suppose, help to fund, directly or indirectly, the respondent to—an application, unless Clause 66(3) is intended to apply in such a case. Perhaps the noble Lord could confirm whether that is the position.
In general, however, the effect of Clause 65 is to threaten not only the applicant but those who might support an application with a liability for costs on the basis of guilt by association in the eyes of the Government—who might, of course, be the defendant. That is an improper approach. The whole object of the clause is clearly designed to provide what we have heard referred to in debates on the Bill thus far as a “chilling effect” on the judicial review process, and in particular on those who might wish to raise significant matters affecting the rule of law where, I repeat, the court has to grant permission in any event. It is a wholly improper concept and I hope that even at this stage the noble Lord will indicate that the Government are prepared to think again about it. If they are not, and we get to Report with the Bill unamended, serious consideration will have to be given as to what will happen thereafter, because the portents do not look good for the preservation of judicial review in this important respect. I beg to move.
Lord Pannick (CB)
My Lords, I have indicated my opposition to Clauses 65 and 66 standing part of the Bill and I agree with everything that has been said by the noble Lord, Lord Beecham. I do not understand why the Government are seeking to single out judicial review for such provisions, unlike any other form of civil litigation, unless the objective is to discourage judicial review claims. Where is the evidence of any mischief that these clauses are designed to remedy? Courts already have ample powers, which they exercise in appropriate cases, to require third parties to pay costs.
I am particularly concerned about the effect that these clauses will inevitably have because the reduction in legal aid already makes it extremely difficult for claimants to secure funding for judicial review on matters of public importance. If claimants are able to demonstrate that they have a properly arguable case on its merits, and if they satisfy other requirements such as standing and time limits, they should not be obstructed further by complex requirements—as these are—to disclose financial information.
In any event, Clause 65 is far too broadly drafted, referring as it does to financial resources “likely to be available” to the applicant. What does that mean? Does it cover the family and friends of the applicant, the law firm or law centre that is providing services pro bono and the charity that is supporting the claim? For all these reasons, I am concerned that Clauses 65 and 66 will impose a wholly unnecessary hurdle that will impede the delivery of justice in this important area of the law.
Lord Faulks
I cannot add much to what I have already said. For the first time, in statute—if this clause becomes law—we shall have a requirement for information about financial resources to be provided. We shall also have clear guidance to the court as to how it should exercise its discretion on using that information about financial resources. I think that the noble Lord himself said that it was useful to have some of these things stated in the statute. That is precisely what we are doing.
Lord Beecham
The Minister has battled with arguments from around the House with as much valour as Richard III displayed at the battle of Bosworth, and with approximately the same result. The Minister’s arguments fell very far short of providing evidence of the case that the Government are seeking to rely on. We heard from him and the noble and learned Lord, Lord Mackay, about two cases. I am not sure whether one of those was hypothetical or not—I think it was a planning matter of the kind that the noble and learned Lord referred to—and the other was the Richard III case. As to the illustration of Islington cited by the noble and learned Lord, I think that the circumstances would be different now. Speaking as someone whose daughter lives in Islington and whose son has just sold a tiny flat for an enormous amount of money in Islington, I think it would be difficult to find anybody who could be described as poor in large parts of that borough. However, leaving that aside, and more substantively, let us look at the Richard III case. There is a point, and it is a fair point, about shell companies being established for that purpose.
Lord Faulks
I am hesitant to interrupt the noble Lord, but since he is coming on to deal with Richard III, and I was asked a question about it, I now have a better answer than the one I gave earlier. He may be able to comment on my answer, so I shall give him an opportunity that he might not otherwise have had. The position is that in the Richard III case the claimant—a shell company—got an absolute protective costs order as the company had no assets, so no costs at all were payable when the claimant lost the case.
Lord Beecham
I repeat that I think there is a potential issue with shell companies. How many other cases of that kind have occurred? The only one we have heard about, and the only one to which the former Lord Chancellor has legitimately referred, is the Richard III case. How many of the other 336 cases that have been brought for judicial review in the past few years have involved what I agree is an abuse? If there is a problem, which the noble and learned Lord and the Minister are perfectly right to address, could it not be dealt with differently? If necessary, there could be legislation dealing precisely with that situation, rather than a general application of principle which could affect many others who are perfectly legitimately seeking to advance their claim? It is fair to say that the Minister has not given the impression of knowing—I do not blame him, because I am in no better a position—whether the court’s current discretion will extend, as implied by the noble and learned Lord, Lord Woolf, to dealing with that situation now. If it did not, we would be prepared to support and discuss what kind of amendment might be made to the Bill to deal with that particular and discrete situation, as I have no doubt other noble Lords, particularly noble and learned Lords, would be.
Lord Mackay of Clashfern
The noble Lord asked whether the examples I gave were both real. One, which I have dealt with in detail before, is an actual example, and the other was simply to illustrate what could happen under the case put forward by the noble Lord, Lord Marks of Henley-on-Thames.
Lord Beecham
Of course the noble and learned Lord is right. I should simply have referred the Islington matter to him as a substantive one. As I said, that is unlikely to be replicated in that particular borough in any event, but that is by the way.
The Minister has signally failed to answer other questions, particularly what is meant by availability and the likelihood of availability. That question has been left in the air, which is not at all satisfactory. We have debated legal aid in this House before, as we have the problems that applicants and their legal advisers will face in dealing with matters up to the stage when permission is granted. There is a real risk that costs up to that point will not be covered by legal aid. There are other areas that will potentially be governed by other proposals, for example concerning a residence test, which currently is under appeal. We will come on to those later.
Lord Mackay of Clashfern
My Lords, so far all noble Lords have spoken in the one sense in relation to this clause. Obviously, in the interests of balance, it is important to consider whether there is anything to be said in favour of the clause. So far as I am concerned, there has been a considerable growth in the number of interventions over recent years. I would like the Government to indicate to us—at some later point if they do not have the information now—exactly how many interventions there have been in the supreme courts. I use that term in its old form, because I think it is extraordinary that we now have senior courts and the Supreme Court. It is high time that the Supreme Court was regarded as the supreme court of the United Kingdom, while the High Court of Justice, the Crown Court and the Court of Appeal were the supreme courts of England and Wales. I hope that, after September, all being well, that may be corrected.
I am not aware that judgments have considerably improved in quality in recent years as a result of interventions, although there may be some way of estimating that. It is always a little difficult, but somebody may be able to do that for us and show the tremendous amount that the interventions have done. I know that the noble and learned Baroness, Lady Hale, for whom I have the highest possible regard for a number of reasons, has said that they are often helpful. I am sure that that is true. Everybody wants help; at least most people with any degree of humility are glad to get help, from whatever quarter it comes.
The noble Lord, Lord Marks, referred to an aspect of this which I think has to be taken into account. Some of the interveners are campaigning organisations, which are campaigning for a particular result. You may take it that they had a good shot at trying to persuade Parliament to go along with them and that, having failed at that, the campaign is continued once the law is passed. These are not conclusive arguments one way or the other, but I personally find this clause too prescriptive in any event. If there is a real point to be considered, the clause needs some revamping, possibly in the light of the amendments that have been proposed. At the moment, I am anxious to see just why there has been a huge increase—as I think there has been—in the number of interventions in recent years. The first intervention that really came to my notice to any substantial extent was an intervention in this House in a case that became rather important for a number of reasons.
Lord Beecham
I am sure that when it comes to interventions, the Minister is extremely grateful to the noble and learned Lord, Lord Mackay, because I suspect that no other intervention has offered him any assistance. The noble and learned Lord might recall that there have been, I think, 50 cases in the last 13 years in which bodies of the kind that he referred to, such as charitable organisations, have intervened. That is not, on the face of it, an inordinate number, just as the total number of judicial review cases—other than immigration cases which are no longer dealt with in the courts—is fairly modest.
Moreover, interventions take place only with the leave of the court. If there were a right to intervene that would perhaps give some force to the noble and learned Lord’s misgivings, but it is for the court to determine whether interveners should be allowed. That point has been made clearly today and on other occasions. It seems to me that the Bill’s provisions in relation to interveners are based on either a misunderstanding of their role or a misrepresentation—deliberate or otherwise—of how it works in the real world, rather than the world the Minister of Justice appears to imagine exists. As we have heard, the role of interveners is to assist the deliberations of the court, not to meddle. Of course, no intervention can be made without the court’s consent.
We have heard powerful speeches from the noble Baroness, Lady Campbell, and the noble Lord, Lord Carlile, who have direct experience of the role of intervention on—almost—different sides. Clause 67 seems to me to be a full-frontal assault on the principle of intervention. As has been stressed today, in earlier debates and in many of the briefings that we have received, this clause is clearly designed to deter contributions to the determination of judicial review applications. Again, leave for contributions must be obtained from the court and, as we have heard exemplified today, such contributions are very often most helpful to the court.
I shall speak to Amendments 74A, 74B, 74E to 74G, 74J and 74L. These amendments broadly follow the theme of preserving the court’s discretion in these matters where the Bill would fetter it, usually for the benefit of the respondent and often, therefore, of the Government. Clause 67(2) illustrates perfectly the Government’s attitude to the principle of equality of arms. It prohibits any order for costs in favour of an intervener. This provision is clearly aimed at charities and voluntary organisations, as opposed to commercial or statutory organisations which are well able to afford the costs of intervention, and it is heedless of the likelihood of thereby discouraging helpful interventions. Amendment 74A would therefore allow the court to make an order for a relevant party to pay the intervener’s costs. Amendment 74B would emphasise the discretionary nature of such an order by adding,
“if the court considers it appropriate to do so”.
Amendments 74E and 74F would remove Clause 67(4), (5) and (6), which require the court to make a costs order against an intervener in respect of costs deemed to have been incurred by a party as a result of the intervention, save in exceptional circumstances, the latter to be judged in the light of criteria, once again to be specified in rules of court, and again, therefore, effectively determined by the Lord Chancellor.
Amendment 74F would allow the court to make an order against an intervener where it considers it just to do so, and provided that exceptional circumstances apply. This would be defined by a new Clause 67(6) as where the intervener has in substance acted as if he were the principal applicant, appellant or respondent. If an intervener takes on that kind of role then he could be ordered to pay costs if the court so determines, as he could if he were a party. As an alternative, Amendment 74G, which is very much by way of a fall-back provision, would at least change the requirement in Clause 67(4) to make an order against an intervener from being mandatory to discretionary, which Amendment 74J would complement by adding,
“if the court considers it appropriate to do so”.
Noble Lords, in particular the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Pannick, who are highly experienced in these matters, have expressed profound concerns about the nature of the Bill’s proposals. We have had indications from the Minister in the past that the Government are perhaps open to argument and persuasion about this. I very much hope that we can hear from him confirmation of that. I hope that some move will be made in the direction of allowing this process—which is of great service to the administration of justice—to continue without the threat which would impede and deter potential helpful interventions from those in the best position to advise the court, which after all retains the ultimate decision.
Lord Faulks
My Lords, I am afraid that I am unable to resist thanking all noble Lords for their interventions on this debate. They have been extremely helpful, and I mean that. This is particularly in the light of the fact that I indicated at Second Reading—as has been referred to in the course of the debate—that we were listening to arguments about this clause. My honourable friend Shailesh Vara MP also gave such an indication in the other place. We will have benefitted greatly from the debate today in deciding on our final position.
Although the noble Lord, Lord Beecham, said that I was grateful for the intervention from the noble and learned Lord, Lord Mackay, it is of course the House which is grateful for all contributions on all sides. With great respect, the point about an intervention is not that it assists any one side, but that it assists the court. An intervention is there to assist the court. I noted and agreed with the noble Baroness, Lady Kennedy, who said that interventions are extremely helpful. They certainly can be extremely helpful, but not all interventions are equally helpful.
Clause 67 as currently constituted aims to strengthen the cost rules relating to third parties who voluntarily apply to join in a judicial review case as interveners. I stress “voluntarily” apply. These interveners can include anyone who is interested in the issues which the court is considering, and they seek permission from the court to intervene in a judicial review case through filing evidence or making representations. Of course, I accept the fact that interveners can add value and assist, as many noble and learned Lords have said. However, they can also delay and hinder. Sometimes they make arguments beyond those required by the court, or merely amplify or repeat those already made by a party.
Here I must declare an interest. I have been in a considerable number of cases where there have been interveners, at the level of both the Appeal Court and the Supreme Court, and on one occasion I acted for an intervener. In fact, I think that that was in the very same case in which the noble Lord, Lord Pannick, was also acting for an intervener. I am glad to say that we kept our remarks within the short compass, and our skeleton arguments were similarly brief. I do have experience of the mounting level of interventions in litigation.
The noble Lord, Lord Marks, referred to the possible chilling effect on those who habitually intervene; those were his words. With great respect, in his use of the word “habitually” there is perhaps an indication of something about which the Government are concerned. There are of course cases where the court is greatly assisted by interventions brought by a disinterested party, which can bring a particular knowledge or contribution to the debate. However, the court might be less assisted by those who habitually intervene and who have a particular agenda which may require or indicate that they support one side or another.
Lord Beecham
My Lords, who is to decide whether a habitual intervener should be allowed to intervene? What is wrong with the court making that decision of its own volition?
Lord Faulks
I was coming to that very point. Interventions can prove difficult for the courts to control. The reason I say that is because on occasions an application is made for an intervener to intervene and, on the face of it, the judge deciding whether or not they can intervene will do so on the basis that they have a knowledge of the case. The judge, having regard to the submissions that he or she receives, considers that the intervener might well be of assistance. The level and degree of intervention is then very often beyond the control of the judge who originally gave permission, so that one can then encounter—perhaps at the hearing of a judicial review, or at the Court of Appeal stage—a very substantial skeleton argument, bundles of authorities, and arguments which range very loosely around the subject matter of the dispute. Here I speak from experience.
Inevitably, this causes expense to all parties involved, whether the applicant or the respondent, because they have to consider the arguments. They cannot rest assured that the judge is simply going to ignore everything on the basis that it might be outside the scope of the intervention. Of course, good judges customarily curtail submissions made orally once the matter gets to the stage of a hearing, and do so effectively. That does not remove the danger of quite excessive levels of intervention and contribution.
Baroness Kennedy of The Shaws
I too feel very concerned about this capping of costs. I see it as being part of a pattern of seeking to reduce the discretion of judges. Of course government Ministers do not say, “We don’t have confidence in the judiciary”, but that essentially is what this is about. It is about saying, “We have to use law to do this because the discretion of the court cannot be trusted to do what we seek to effect”. This amendment is about insulating the Government against challenge. All the clauses that we have been discussing today are essentially about seeking to limit judicial discretion, judges being the people who can weigh up carefully the merits in order to reach just decisions. That is being interfered with to protect the Government from challenge. That is what it ends up being about.
I too, therefore, support the amendment. The Government should think again about how this is perceived. The sitting judges cannot stand up and speak on their own behalf, as we know, so it falls on those who have been judges or who are active in the courts to alert the general public to what is happening. What we are doing is fettering the power of judges to do that which is right in a given case.
Lord Beecham
My Lords, it might be convenient to consider this group and the following group as one. The noble Lord, Lord Marks, has addressed his amendments in that group. I strongly support the amendments tabled by the noble Lords, Lord Pannick and Lord Marks, to which I have added my name, together with the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Carlile. I speak therefore briefly to the amendments in my name. Amendment 75 is particularly important in that it addresses the problems facing applicants for permission in the absence of legal aid for that stage. Amendment 75A provides that the court may make an order at any stage of the proceedings, in connection with Clause 68(3), and Amendment 75B would extend this potential protection to interveners whose position we have debated in a somewhat different context earlier today. Amendment 75E removes the reference to the court considering information of a financial nature if such is only “likely to be available”—a phrase that we have already debated —in respect of Clause 68(5).
Without the protection of the amendments in the group, not least from the Government’s proposals about a public interest test, which the Lord Chancellor conveniently empowered to define the terms of such a test, the protection offered to parties by this clause would be diluted to homeopathic proportions.
In the next group, Amendment 80B would apply to Clause 69(2) and provide that a costs capping order limiting or removing the liability of the applicant to pay another party’s costs where an order is not granted should “normally” rather than mandatorily limit or remove the other party’s liability to pay the applicant’s costs if that is the case. That introduces an element of reciprocity. Amendment 80C alternatively would allow discretion by substituting “may” for “must” in the subsection; again the issue of judicial discretion raises its head.
We have heard powerful speeches from non-lawyers—the noble Baroness, Lady Campbell, and my noble friends Lady Lister and Lord Davies—and, if I may say so, a magisterial rebuke to the Government from the noble and learned Lord, Lord Woolf; that was not for the purposes of delivering an admonition but to persuade them of the error of their ways, which I hope the noble Lord, Lord Faulks, will convey to the Lord Chancellor with some effect. These provisions thoroughly dilute what ought to be a sensible measure to protect claimants in this particularly important area of jurisdiction.
Lord Beecham
My Lords, I will compensate for the length of time that the noble Lord took—quite rightly—in moving his amendment by being commensurately brief in my remarks. On behalf of the Opposition, I support a stand part negative, as it were, in relation to Clause 70, for the reasons that the noble Lord advanced.
Amendment 82B, in my name and that of my noble friend Lord Kennedy, would effectively disapply Clauses 64 to 69 in favour of the terms set out, which would align the situation to that of the Aarhus convention. I think we are of one mind in inviting the Government to look again into this issue. It is another example of them failing to appreciate the implications—to put it in a benevolent sort of way—of what they are doing in this connection, not just to domestic concerns but to the international obligations to which we subscribe. I hope the Government will listen seriously to the noble Lord’s critique, look again at the amendments tabled, including the amendment in my name, and revise their position before we get much further down the road with this Bill.
Lord Faulks
My Lords, I am grateful to both noble Lords—my noble friend Lord Marks and the noble Lord, Lord Beecham—for their contributions to this debate. Clause 70 enables provision to be made to exclude judicial reviews about issues which relate entirely or partly to the environment from the revised costs capping regime established in Clauses 68 and 69, which we debated in the previous group. Clause 70 is to reflect our obligations under the Aarhus convention and the various European directives which implement it, which set out requirements for access to justice concerning environmental matters. This includes a stipulation that such procedures must be,
“fair, equitable, timely and not prohibitively expensive”.
This is relevant to judicial reviews in certain environmental cases. Allowing for such environmental cases to be excluded from the costs capping regime in Clauses 68 and 69 allows the Secretary of State enough flexibility to meet future changes in the international landscape. A separate regime has already been established in the Civil Procedure Rules to govern costs capping orders in such cases in England and Wales. It applies a fixed costs framework under which, in a claim raising issues that fall under the Aarhus convention, the liability of the claimant to pay the defendant’s costs is automatically capped at certain levels. This regime is simple to operate and understand.
Amendments 81C and 82B would seek to exclude certain types of judicial review from the provisions in Clauses 64 to 69. Those claims might be considered very broadly as “environmental”. Amendment 81C defines those cases that are excluded by reference to the Aarhus convention and introduces a requirement that, provided certain conditions are met, costs capping orders should be made in these cases.
Amendment 81C also aims to restore the full recoverable success fee and after-the-event insurance premium structure that the Legal Aid, Sentencing and Punishment of Offenders Act 2012 removed, implementing the Jackson reforms to reduce excessive costs in civil litigation. Amendment 82C would seek to define what would fall within the definition of an Aarhus convention claim. Amendment 81A is contingent on Amendment 81C. Its effect is to make Clause 69 subject to the changes to Clause 70, which I have already discussed.
Attempting to define these claims in statute risks either being too generous and gold-plating the Aarhus requirements, or alternatively being too restrictive and missing out claims which should be caught by the Aarhus regime. The definition as set out in the proposed new clause is very broad, and appears to err on the side of gold-plating. In particular, we would not necessarily accept that all private law claims falling within the new clause should come under the term “Aarhus Convention claim”.
The Government see no reason for excluding additional cases, particularly such a broad range of cases as would be covered by these amendments. Too broad a definition would create an incentive for claimants to characterise their claims as “environmental”, generating satellite litigation and assisting, for example, those bringing weak claims to shelter from their proper costs liability. In the Government’s view Clause 70, which allows for the exclusion of certain environmental judicial reviews from the new protective costs order regime which Clauses 68 and 69 will establish, is sufficient to ensure compliance with our obligations under the Aarhus convention and the directives which implement it. The proposed new clauses would upset the careful balance between ensuring the proper measure of access to justice in environmental and other matters and ensuring that judicial review is not misused.
I turn now to Amendment 82D. The new clause seeks to amend Section 10 of the LASPO Act, which makes provision about exceptional case determinations for individuals, and Schedule 3 to that Act, which makes provision about exceptional case determinations for legal persons, so that Section 10 and Schedule 3 would both refer explicitly to claims for judicial review related to the Aarhus convention. The Government do not believe that such an inclusion is necessary. First, funding would already be available to bring a judicial review with a potential benefit to the environment, subject to the merits and means test. This is in the scope of the general civil legal aid scheme by virtue of paragraph 19 of Part 1 of Schedule 1 to LASPO. Section 10 of LASPO provides for exceptional funding in cases that are outside the general scope of civil legal aid. Secondly, along with the provisions of the Aarhus convention, this amendment is concerned with reflecting EU directives. The current provisions under Section 10 and Schedule 3 already provide for legal aid to be granted where it is necessary to make the services available to the individual or legal person because failure to do so would be a breach of the individual or the person’s enforceable EU rights.
The noble Lord, Lord Marks, referred to reviewing the CPR. The Government have committed to reviewing the costs regime for environmental cases when the European Court of Justice handed down its judgment in the Commission v the United Kingdom case. Following that judgment in February this year, and recent case law, we are reviewing the current costs regime. As part of that review, we will consider whether the current costs regime for Aarhus claims should make provision for statutory review proceedings dealing with environmental matters, look at what scope there is to amend the current cap—which is currently £5,000 for individuals and £10,000 for businesses—and consider the principles determining what level of costs in a particular case would be prohibitively expensive, as set out in Edwards v Environment Agency and reiterated by the European Court of Justice in its various infraction judgments, and whether they could be included in the costs regime.
The Government do not accept that all private nuisance claims are caught by the convention requirements. They tend to focus on enabling those with interests in land to protect their private property rights rather than enabling members of the public to challenge environmentally deleterious acts. However, on the occasions where a private nuisance claim relates to actions which do not merely harm the claimant’s private property rights but contravene provisions of national law relating to the environment, there are judicial and administrative procedures which may be relied upon by members of the public.
The Aarhus convention protects the right of environmental NGOs to bring judicial proceedings. It is not necessary to intervene in existing cases, so Clause 67 does not put the UK in breach. As to reviewing the application of LASPO to this area, I recall that during the debate when the LASPO Bill was going through Parliament there was an attempt to carve out an exception for cases of this sort. As the noble Lord, Lord Marks, and the Committee will have heard me say, the Government are committed to reviewing the effect of the LASPO provisions, but it is far too early to do so in this particular context. The review will take place within five years—perhaps sooner than five years, but certainly not much sooner—so as to allow a full review of the effect, bearing in mind in particular that there was a large spike in cases before April 2013, the cut-off date, which may make it very difficult to analyse satisfactorily the effect of LASPO.
Of course, I will reflect carefully on the observations of my noble friend Lord Marks and the noble Lord, Lord Beecham, but I gratefully decline my noble friend’s invitation to amend the Long Title of the Bill as currently advised. It is our view that these provisions are sufficient to ensure compliance with our obligations under the convention and the EU directives. I therefore respectfully invite the noble Lord to withdraw his amendment.
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 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.
Lord Beecham
Perhaps the noble Lord will pass the legal caution on to the Lord Chancellor.
Lord Faulks
I am grateful for that contribution.
The Lord Chancellor made in the Daily Telegraph various comments which resulted in what was described—not alleged to have been described—as a “kick in the shins” by Lord Justice Moses. All I can say is that, during the time I have been standing at the Dispatch Box, the Lord Chancellor’s shins have been extremely bruised by the number of comments that have been adverse to him personally, to his responsibility to the office or to his disregard for the rule of law. I am sure that he is painfully aware of the harm that has been done to him by the observations that have been made. It is a matter for your Lordships whether you think that is appropriate.
I should also say this. Of course, the withdrawal of legal aid in any context is not something that any Government relish, but throughout the period—and we are now coming to the end of this Parliament—the party opposite has opposed all cuts to legal aid, whether they are civil legal aid cuts or criminal legal aid cuts. They have advanced very skilfully all sorts of arguments about the outrage that has followed. It is time for some clarity to emerge from the party opposite as to whether it will in fact restore legal aid to all these areas where it is said that it has been wrongly withdrawn or whether this is to some extent posturing on their part.
The noble Baroness, Lady Lister, referred to the difficulties that she described of children in particular in relation to the residence test. Although, as I say, I am not going to go into great detail because it is all to be considered by the court—at least in terms of the vires of the residence test—the Government’s position is that they do not believe that the JCHR should have concluded what it concluded in that respect. The committee appears to have proceeded on the basis that a child needs a lawyer in all cases to represent them and to ensure that their views are taken into account. There have always been cases where the child speaks for himself directly or where a parent or guardian ensures that the views of the child are properly taken into account. The Government are not aware of any evidence before the committee that indicated in such cases the child is not able to express views and participate appropriately in legal proceedings.
Following the ruling of the court in the residence test case, noble Lords will be aware that the draft order introducing the residence test was withdrawn. The amendment before the Committee now would therefore introduce an exception to the residence test in the abstract. I would respectfully suggest that the appropriate place to consider any exceptions would be while considering the residence test as a whole, rather than in isolation and in the context of a free-standing provision for judicial review. Nevertheless—there should be no mystery about this—I should make it clear that we do not agree that an exception should be made to the residence test for all judicial review proceedings. The test reflects our view that individuals should have a strong connection to the United Kingdom in order to benefit from the civil legal aid scheme. In line with those principles, we therefore decided that, in general, applications for legal aid for judicial review proceedings should be subject to the same test.
The noble Baroness, Lady Lister, referred to certain “concessions”, as she described them. What happened was that, following careful consideration, we proposed certain limited and focused exceptions for judicial review cases that relate to an individual’s liberty, and for certain immigration and asylum judicial reviews. I am glad that she called them concessions; she previously described the Government’s position as a “climb-down”, which is perhaps not a kind way in which to describe the approach that the Government try to take on difficult decisions.
We believe that the residence test is by and large a fair test that should make sure that legal aid is targeted at those cases where it is justified. Moreover, it achieves the essential policy aim of targeting legal aid at those with a strong connection to the United Kingdom. I therefore ask the noble Lord to withdraw the amendment.