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Criminal Justice and Courts Bill

Volume 757: debated on Tuesday 9 December 2014

Commons Reasons and Amendments

Motion A

Moved by

That this House do not insist on its Amendment 74, to which the Commons have disagreed for their Reason 74A.

Lords Amendment

74: Clause 29, page 29, line 36, at end insert—

“( ) No female, nor any male under the age of fifteen, may be placed in a secure college.”

Commons Reason

The Commons disagree to Lords Amendment No. 74 for the following reason—

74A: Because it is not appropriate to prevent the detention in secure colleges of males under the age of 15 and females.

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.

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?

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

Moved by

As an amendment to Motion A, leave out from “House” to end and insert “do insist on its Amendment 74”.

My Lords, once again I admire the skilful advocacy of the Minister, this time in his presentation of a case that I totally reject, for reasons I will explain. I am grateful to him for providing me with an advance copy of his report proposal last night, but it does not answer the point made in Amendment 74, namely that boys under the age of 15 and girls should not be sent to a secure college under any circumstances. It is true that they are currently mixed in smaller secure children’s homes and secure training centres, but those are smaller places. Having small units within large units on a large site is not satisfactory, not least because the numbers of boys under 15 and girls are likely to be swamped by the vast majority of those older children who will be on the remainder of the site. What the Minister has outlined is not that Parliament will be given an opportunity to debate the issue, but merely how the Secretary of State will inform it once he has decided to send them there. Noble Lords will not be surprised to hear that I find that totally unsatisfactory.

I have a confession to make about the whole secure college proposal. For the first time in my life, I feel ashamed to be British because I am so appalled that anyone should have dreamt it up, let alone tried to blandish Parliament with spurious claims that an entirely untested and unevaluated proposal involving increased education will reduce children’s offending. All the available evidence, not least that the smaller the establishment the better when children and young people are detained—which I recognise from my experience when inspecting young offender institutions, secure training centres and secure children’s homes—points to the proposal to establish the biggest children’s prison in the western world being far more likely further to damage some of the most vulnerable and damaged children in our society with their multiplicity of problems and needs, not just lack of education.

I make no apology for yet again quoting some of Winston Churchill’s immortal words describing a decent criminal justice system. He said that the way in which it treats its crime and criminals is the true test of the civilisation of any country and marks and measures the living virtue in it. Would that he were here to pronounce his verdict on the proposal, because he would do it so much more effectively than I can.

In his letter dated 4 December, the Minister described the secure college proposal as a pioneering approach to educating young offenders and tackling stubbornly high reoffending rates. He is absolutely right to describe laying a proposal before Parliament about which no one, not even the proposer, knows any details, as a pioneering approach, but I hope that it is one that will never be repeated. I fear that those in both Houses who have voted for the proposal thus far have done so because they are attracted by the word “pioneering” and seduced by the blandished prospect of past failure being swept aside. But if anyone who voted in favour bothered to probe deeper into what the proposal actually meant other than the provision of more education, they would find nothing other than the assertion that the market will find the solution.

So far, the Secretary of State has awarded a building contract for a paper plan on a site with planning permission for an earlier young offender institution. One would assume that the education provider would have a say in the build of a new college with education at its heart, but no. Bidding for the educational contract has not yet started, nor do there appear to be any criteria against which competitors will be judged. One would presume that bidders would be required to compete for the delivery of a specified regime, but that, too, is far from the case. Rather than lay down a regime, the Secretary of State says that it will be the content of the as-yet-unknown winning bid. I admit that I cannot imagine any business daring to function like that or it would fail. But to personalise the point, would anyone consider sending any child with a multiplicity of problems to any school unless they had a very clear idea of how those problems might be treated?

Two weeks ago, the All-Party Parliamentary Penal Affairs Group, which I co-chair, and the packed audience at the annual Longford lecture, heard Nils Öberg, head of the Swedish prison service, describe how after long and careful scientific research into the characteristics, problems and needs of their young offenders, the Swedish authorities had concluded that the invariable multiplicity of young offenders’ needs could best be treated by trained experts in small, local establishments containing no more than 10. They knew that this was bound to be expensive because of the number of appropriately trained staff required—child-skilled staff do not come cheap—but they had a duty to secure the future for all Sweden’s children; a duty that applies in every civilised country, which ours still purports to be.

That is why I agree with the noble Lord, Lord McNally, that staff are the key factor in decent child detention, and disagree with the Secretary of State both when he says that educational outcomes are more important than staff selection for this damaged and vulnerable group and when he persists in suggesting sending boys under 15 and girls to his college. This is where it is abundantly clear that the Secretary of State has not done his homework. He claims that the market will provide a better result at less cost than the present arrangements. Children under 15 and girls will need a completely different staff from those responsible for the vast majority of boys over 15. These will have to be provided from the overall budget, which means that they are bound to be at the expense of the older children. That is precisely what happened in young offender institutions when resources had to be taken from those over 18 to ensure that the Youth Justice Board’s contract requirements for those aged 15 to 17 could be met, the resulting paucity of regimes for young adults being a national scandal.

Of course reoffending is too high and too many of our young offenders have appalling educational records, but on what evidence does the Secretary of State base his belief that a commercial contractor can succeed where others have tried and failed? Why has he not released any research, scientific or otherwise, proving that he is right and that every single organisation and individual in the country who knows anything about dealing with troubled young people is wrong? Where is any analysis that he has researched the multiplicity of the children’s problems, or specification of the number of expert staff who must be on the site to cope with them?

At Third Reading, I mentioned the need for healthcare, particularly mental health care, to be of equal status with education in deciding the ethos of the secure college. Since then, I have heard yet more evidence that healthcare provision is imperfectly understood in the Ministry of Justice. I have told the House of the number of children in custody with speech, language and communication needs, and the remarkable results that speech and language therapists can achieve with them. I was told last week by the Royal College of Speech and Language Therapists that young offender institutions were refusing to allow boys to attend therapy because their absence from education counted against the target of 30 hours’ education demanded by the Secretary of State. Until March this year, the Lucy Faithfull Foundation conducted sex offender programmes in a number of young offender institutions. The Ministry of Justice then instructed that its contract was to be passed from the Youth Justice Board to NHS England. However, sex offender programmes come under offender management, not healthcare, and now there is total confusion, with young sex offenders being denied programmes. You could not invent such stupidity.

I could go on and on, but I will come to the crunch. At Third Reading, I asked the Minister to refer the matter to the Prime Minister because the future of our children is a national interest. I also wrote to the Prime Minister, pointing out that the Secretary of State was bulldozing ahead with a pet proposal in defiance of not only all the evidence but of the Government’s own announced social justice policy. I asked him to examine the evidence and state publicly whether he backed his Secretary of State or whether he felt it sensible that the proposal should be withdrawn for further consideration. I pointed out, as I have done since Second Reading, that the Secretary of State had a perfectly valid reason for withdrawal because, thanks to the success of the Youth Justice Board in reducing the number of children in custody, the nature of those who were left was very different from the previous number, not least because of the multiplicity of their problems. I have not yet had a reply to my letter and ask the Minister whether the Prime Minister has responded to my question on Report.

When the time comes, I invite the whole House, both those in the Chamber and those waiting to be whipped, to cast aside party politics and approach this issue from the point of view of a parent, grandparent, uncle, aunt, close relative or friend of a child with a multiplicity of problems, whom the Secretary of State for Justice intends to detain in his proposed secure college. I ask your Lordships to ask yourselves whether, knowing what you do about the proposal, you could live with yourself if an errant child in your family or of your acquaintance was to be detained in such an establishment. I realise that there is no exact parallel, because while we all know children with learning difficulties or disabilities, or mental health or behavioural problems, I doubt whether anyone in our immediate ken has been subjected to unspeakable parental neglect, or sexual or domestic violence, or to a lifestyle at what passes for home that is best described as chaotic and dysfunctional. Of course these children have committed crimes, but that does not mean that they should not be decently treated.

Therefore, when your Lordships vote, I ask you to follow your conscience as opposed to party diktat. This is the last chance that we have of preventing something that I would contend to be a stain on our nation, whether or not it contains boys under 15, and girls. I beg to move.

My Lords, unlike the Minister and the noble Lord, Lord Ramsbotham, whose vast experience of the custodial system in this country we all acknowledge, I will confine my remarks to the issue of under-15s and girls. I do not in any way depart from the criticisms of the general principle, but that has now been settled and we must accept that secure colleges will go ahead, provided the Government manage to enter into suitable contracts to build and operate them.

The Government’s proposal now to consult on and publish a report on this specific issue perhaps raises more questions than it answers. There are questions, going back to the original process, about which organisations or experts have supported the proposal to house under-15s and girls in an establishment of this kind. I am not aware of any. Perhaps the Minister can identify some. There is also the question, raised before by the noble Lord, Lord Ramsbotham, about whether the Government have considered similar schemes in, for example, Spain and the United States—similar in the sense that they are addressing the problems of this young age group but conducted on very different principles from that which the Government propose to put forward in the context of the secure colleges envisaged by the Bill. Moreover, there have been representations from a wide range of major, national bodies, such as the Children’s Rights Alliance, the Prison Reform Trust, the Standing Committee for Youth Justice, the Howard League for Penal Reform and, in a recent briefing, which some of your Lordships will no doubt have received, eight national women’s organisations concerned particularly with the problem of girl offenders in these institutions.

There are also questions about the proposed consultations that the Government will enter into. Will they take place after the go-ahead is given for the construction of that part of the college that would house these young people or is that element of the proposed building contract to be deferred until the process is completed by the consultation to which the Minister refers? If it is not, I fear that it will become pretty much a fait accompli. Once the provision is made it is hard to envisage that the Government would fail to use it in the way that is currently envisaged.

There are also questions about the nature of the consultation. The Minister has circulated documents saying that the Secretary of State will consult the Youth Justice Board, Her Majesty’s Inspectorate of Prisons and Ofsted. The Minister has said it this afternoon. One would expect that and it is welcome, although I note in passing that the Chief Inspector of Prisons has, in what unfortunately will be his last few months in office, just published a response to the questions about the rules of the proposed college. In that response he is clearly expressing concern about the provision for under-15s and girls as well. So one potential respondent to the consultation is already expressing those concerns, although the chief inspector will no longer be with us as he is leaving his office in the new year before the final decision is made.

Will that consultation be confined to those three important institutions or will it go wider? Will it, for example, embrace the British Medical Association, which published a report this year called Young Lives Behind Bars, dealing with the provision of custodial facilities and the treatment of young offenders, which raised a great number of concerns? Will it embrace the local authorities to whose areas these young people will go back? It would seem to be essential that the social services—children’s services departments in particular but perhaps also other departments; one thinks of housing and the like—should be consulted about the provisions that are to be made for their young citizens who will be for a period incarcerated in the new college. The question also arises as to whether the other bodies—for example, the probation service, however it is to function under the new regime—will be separately involved. Again, one might have thought that that would be a given but it is not explicit in the Minister’s paper that outlines the consultation process.

It seems to me that there are significant questions to be asked even about the limited process that the noble Lord has outlined. I concur with the views of the noble Lord, Lord Ramsbotham, that it is an inadequate response. I take the point that was raised in the intervention by the noble Lord from the government Benches, who—if I may respectfully say so—perhaps rather naively thought that the Government might have contemplated that the report would require parliamentary approval. I agree with him, it would have made a significant difference, but that is not, apparently, on the agenda. One has to ask again why the Government are so reluctant to put their report on this hugely sensitive area to the test of the support of both Houses in the event that the consultation concludes that it is desirable to proceed with this very controversial measure.

I join the noble Lord, Lord Ramsbotham, in hoping that Members will look at this one, now limited aspect of what has been a very controversial proposal and conclude that the Government have not made their case to proceed in the way that they propose to do, even with the very limited concessional gesture that the Minister has outlined. If the noble Lord seeks to divide the House, I will ask my colleagues on these Benches to support him but I hope, as he does, that that support will not be confined or indeed even governed by a political stance as much as a genuine concern for these young, vulnerable people, and doubts about the rationale for and the potential problems that might be caused by the Government’s proposals, if implemented.

My Lords, I wish I could support the Minister. I am most grateful to him for all he has done recently for 17 year-olds in police custody and for acting promptly on the concerns of parents for their 17 year-olds in custody. However, I fear I must support my noble friend, to whom I pay tribute for his campaigning and determination in pursuing the welfare interests of these young people—girls and boys.

I have consulted with the experts whom I trust the most and their view is identical to those of the many other experts who have responded on this issue: it is far better to keep girls and boys under 15 in small local units. In large part that is because family relationships can be better sustained and strengthened. In some cases these relationships are unhelpful. In general, however, one has to try to support them.

I recall visiting Dr Camila Batmanghelidjh at Kids Company. One of her young people was my guide. He showed me the scar on his back from a bullet and spoke of his time inside prison. We also talked of the great pains Dr Batmanghelidjh took in helping to reunite him with his mother. He spoke movingly of the experience of the renewal of his relationship with his mother and the importance to him in his rehabilitation.

The noble Lord, Lord Farmer, and another Conservative Peer, recently spoke about the importance of fathers—the “dad deficit”, as it is called. According to the OECD in its data on family formation, from memory, 15% of children in Germany live without a father in the home; 18% in France; 22% in the UK; and 25% in the US. The OECD predicts, however, that we will overtake the US in the next 10 to 20 years.

We cannot continue to overlook the value of sustaining family relationships. It is vital that girls and boys under 15 are housed in local, small units, where those relationships can be fostered and supported. I urge your Lordships to support my noble friend Lord Ramsbotham.

My Lords, I am a patron of a secure unit in Exeter, the Atkinson unit, which at the moment has troubled children coming under Section 25 of the Children Act, but it used to have children from the Youth Justice Board. It is a very small unit, taking 10 to 12 children. From my frequent visits there I have had the opportunity to see how this very small unit works extremely well with young children—those under 15. I am very unhappy about the Government’s proposals that children as young as under 15 should go into a large group of children, many of whom will be over 15, from whom they can learn all too much. I therefore also support the noble Lord’s amendment.

My Lords, the arguments on this issue have already been well developed today by other noble Lords who have spoken, as well as at earlier stages of the Bill. I do not propose to develop the position that I have taken earlier in the Bill’s passage.

We all know that the reason for this House’s amendment was that the virtually unanimous professional evidence is to the effect that it would be unsatisfactory to place a small number of girls and younger boys in a secure college with a very large number of older boys. The pathfinder college at Glen Parva in Leicestershire is proposed to hold about 320 young people. There are currently only about 45 girls and 40 offenders under 15 in custody throughout the secure estate. Even adopting for Glen Parva a very wide catchment policy—which would itself be undesirable because of the distances these children would be from their homes, although I accept that that is not always a negative—it is highly unlikely that more than about 15 girls and 15 boys under 15 could be placed in Glen Parva. In my view, that is entirely unacceptable. It would be intimidating and unsafe for either group to be in this tiny minority in this very large secure college.

The Government say that they will not put boys under 15 or girls into Glen Parva at its opening. In a sense that concedes the case. They nevertheless say that they wish to be free to put boys under 15 and/or girls in Glen Parva or other secure colleges in the future. They propose to go ahead with the building of the two houses for these groups at Glen Parva. The design for Glen Parva has those two houses for girls and younger boys cut off from the main site, but the children held in them would share the main health and education block and access to the main site with a very large number of older boys.

My noble friend says that the Government will not use secure colleges in this way until they lay a report before Parliament. However, originally they did not say who would write that report. It now appears from what my noble friend said that it is the Secretary of State who will do the consulting and therefore, presumably, the Secretary of State who will prepare and approve the report. However, it is the Secretary of State’s own plan to use Glen Parva. The Minister does not say whether it will be incumbent upon this or any future Government to follow the recommendations in a report, nor has he offered any effective form of parliamentary scrutiny. An offer of a chance for Parliament to debate the report, with no right to stop a proposal proceeding, is no safeguard.

I have made it clear to my noble friend that I would want to agree a compromise on this issue if it were possible to do so. In particular, I accept that there is no definition in the Bill of what is meant by “secure colleges” or what size they should be. They could be smaller colleges than Glen Parva and more specialist, so that an educational environment that was mixed in gender and age might not be so inappropriate. However, that is not what is proposed at the moment. If the Government were to offer not to put under-15 year-olds or girls into secure colleges without parliamentary approval, that would offer Parliament a chance to consider and vote on any new circumstances that might be said to justify the detention of these groups in secure colleges. However, when my noble friend Lord Willis asked the Government for such an assurance, he was categorically refused it. The noble Lord, Lord Beecham, says that he was naive to ask for it. I do not believe that it is a naive request; it is a justified and justifiable one, and the Government’s position can be sustained only if they accede to it.

To date, no opportunity for parliamentary scrutiny has been offered. In these circumstances, while I have listened very carefully to what the Minister has to say, I find it impossible to support the Government’s position.

My Lords, I support the noble Lord, Lord Ramsbotham, largely because since this House last discussed secure training colleges, two secure training centres have been given notice of closure by the Youth Justice Board. One of those, Hassockfield, was in my constituency. What lessons have the Government learnt from the introduction of secure training centres? My recollection is that I opposed them when we were in opposition when the legislation went through in, I think, 1996. My Government said that they had to carry that through because the contracts had been signed. When Hassockfield opened, I was contacted virtually daily by the police who said, “The children in here are too young. They do not understand what it means to be in a secure establishment. We are being called every day and they’re ending up in police cells”. Indeed, they wrecked the place. So the initial contract, which was given to an American company, then went to Serco. Someone from the Youth Justice Board had to be in there full-time to sort out the regime, and since then Hassockfield and, I understand, the other secure training centres have not taken many children under 15 because the regime in a secure centre, even with what Ofsted says is now very good education, is not suitable for young children.

The other issue is about being near home. There was a tragedy at Hassockfield. I discussed it at great length with a whole range of people, and one of the reasons for that young boy taking his life, although by no means the only one, was his distance from home and his contact with home and his own community.

The Government are taking enormous risks with the safety—and the ability to change and handle their lives—of children in incredibly complex difficulties. In relation both to having one centre in the middle, to which children have to travel a long way, and to the issues of the age group and including girls, the Government need to learn the lessons of their own history in setting up secure training colleges. They should think about this again and look at the language used when the colleges were introduced. It was very similar to the language that Ministers used in this House today and in the Commons last week. If they do so they will recognise that they are making a mistake and that they really do need to rethink this policy.

I will ask the Minister three short questions, but before I do, perhaps I may give a little reassurance to the noble Lord, Lord Ramsbotham, who moved the amendment. He encouraged Members of your Lordships’ House not to vote according to party diktat. As a Liberal Democrat, I can assure him that although we are given advice—sometimes strong advice—we do not deliver party diktat in my party. I am happy to be able to say as a Liberal Democrat that nobody in this party expects us to vote for a proposition to which we conscientiously object. That is why I shall be voting for the noble Lord’s amendment unless we hear a meaningful concession from my noble friend the Minister in the course of the minutes to come.

My three questions are these. First, the Government have said that they do not intend in the foreseeable future to use powers to allow the secure college estate to be used for under-15 year-old boys and girls. What does “the foreseeable future” mean? Does it end at the time of the next general election, thereby meaning that in the unlikely event of a Conservative Government being elected, the foreseeable future will be over and they will immediately decide to allow these facilities to be used for girls and young boys? If the foreseeable future does not end at the time of the forthcoming general election, why are the Government in such a hurry to allow these facilities potentially to be used for girls and young boys?

My second substantive question is about the secure college at Glen Parva itself. My noble friend the Minister and other Ministers have been kind enough to allow Members of your Lordships’ House to attend repeated meetings in which we have pored over the plans of this establishment. As the noble Lord, Lord Ramsbotham, said, those plans are entirely unsuitable for girls and young boys. The whole design of the place is founded upon the availability of the land, not upon starting with a designer’s brief to produce a secure college. That being the case, and that being the overwhelming opinion of all experts who have looked at this proposal—other than those who are within, as far as I can see, the Conservative part of this coalition Government—why do the Government not wait to obtain permission to send girls and very young boys to a secure college until there is a plan that has been properly consulted upon on a wider basis and fulfils empirical need?

Thirdly, why do we need this now at all? We know that the Glen Parva secure college will not open until, at the earliest, 2018. I do not think that I can remember a single year in my 30 years in one or other House of Parliament in which there has not been a criminal justice or sentencing Bill—or two, or three. Why can we not wait and have primary legislation based on proper evidence in the next Parliament? I doubt whether anybody from any Front Bench in this House would deny that there will be a criminal justice Bill in the first Queen’s Speech at the end of May. What is the hurry now? It is because of what I suspect will be the answer to those questions that I shall be supporting the noble Lord, Lord Ramsbotham.

My Lords, I had not taken a deeply close interest in what this amendment is about until I listened to what the noble Lord, Lord Ramsbotham, said. About 30 years ago, I took over from my noble friend Lord Elton as the Minister in the Home Office responsible for prisons. Subsequently, I have been a patron of the Butler Trust, which has done a lot to support the work of prison officers and prison staff of all sorts in the work that they do, not only in England but in Scotland, where I was the Scottish patron. One of the most disturbing elements I found in my work, not only in the prison world but in the Butler Trust world, was the parlous state of those young people who ended up in incarceration in one form or another. It disturbed me immensely.

What is proposed by the amendment makes sense up to a point, but I am increasingly concerned that one of the ways in which the Government would be wise to try to buy off the opposition to this is by moving from the current negative procedure to the affirmative procedure and using the opportunity that affords them to allow Parliament to debate what it is not otherwise being allowed to debate. In that case, the Government will have the support of many of us, but denying that opportunity is something I find extremely difficult to live with.

My Lords, I do not understand to which procedure the noble Lord referred. I can see no example of the negative or the affirmative procedure. In any case, in your Lordships’ House we either accept everything or vote it down completely; that is not amendable.

I approach this as a parent and a grandparent and as somebody who has been on a police authority, a social services committee and an education committee. I have visited secure establishments. Let me reassure noble Lords who believe that those of us who are expressing concern are not concerned about reoffending. I am concerned about reoffending for the sake of other young people as well of as the young people themselves. I am deeply committed to extending anything that will help young people not reoffend. However, I ask noble Lords to imagine that they are members of a local authority considering this proposal. Placed on you by law would be a duty of care to the young people concerned. Negligence could well end up with proceedings being taken against you.

We owe it to those young people to ask about this. I accept that the argument about secure colleges is lost, except for these two groups. I remain deeply uneasy. I cannot possibly do anything other than accept the noble Lord’s Motion and sleep easy believing that we have fulfilled our duty of care.

I again ask the Minister, for whom I have respect: why on earth will we not be allowed to debate and offer detailed observations before any decision is taken? That is a simple proposition. If the Government are proved right, your Lordships’ House will listen and be fair, but we are not being offered that. I ask every noble Lord to say to the Government: at least convince me before you ask me to reject the Motion of the noble Lord, Lord Ramsbotham.

My Lords, I wonder whether my noble friend the Minister could add two further questions to the three asked by my noble friend Lord Carlile, which will help me in deciding exactly what to do. First, will he confirm to the House that neither the affirmative procedure nor the negative procedure is to be applied before the scheme is brought in? As it stands, the scheme can be brought in by the Minister without either. If that is right, will he then explain why the Government decided in the other place that they would ensure that the affirmative procedure would be used to the extent that the Government wanted to authorise the use of force, but not otherwise? Why is the affirmative procedure being used in that case but not in this?

My other question is this. I have looked in vain at the debate in the other place to see whether they had the opportunity to consider the extremely powerful points made by the noble Lord, Lord Ramsbotham, with an answer by the Minister. I cannot find anywhere in Mr Andrew Selous’s speeches on 1 December even the beginning of a reply to the noble Lord’s points. I ask that question because, before taking the solemn step of sending the matter back to the other place, it is important to know what happened. If I had seen a rebuttal of the points of the noble Lord, Lord Ramsbotham, that would affect the way in which I will behave, but I ask my noble friend the Minister whether I am right in saying that the noble Lord’s points simply went unanswered.

My Lords, I would briefly like to speak on Motion A1, which would ensure that girls and younger children are kept out of secure colleges as we know them. We know them to be tough, intimidating and challenging places. The children’s charity, the NSPCC, believes it would be unsafe, inappropriate and potentially damaging to hold girls and under-15s in such institutions, especially as they would be with many older boys. The main reason for this is that many of the girls in custody are highly likely to have experienced sexual abuse. Placing them in custodial institutions may be traumatising and damaging to their rehabilitation. Placing girls and young children in secure colleges will cause serious and unprecedented safeguarding risks that should be considered.

Every child deserves to have the best education on offer, to help them prepare for the future and to help them cope with life. But to reach their full potential, children need to feel safe and not intimidated or bullied. We know that these environments will be made up of the most troubled children in the country. There is a need to give these vulnerable children the confidence to reach their potential, to help them engage with their education and to give them stability and consistency. The evaluation report by Ofsted does nothing to address these serious safeguarding concerns. I ask my noble friend the Minister: how will these concerns be addressed? What type of facilities will be put in place to give children and young people the stability, safeguards and requirements that are needed to deal with their mental and physical health and well-being? I look forward with great anticipation to my noble friend’s response, and hope he gives full consideration to our concerns today. I will accept nothing less than a compromise.

My Lords, I was the Minister responsible for the police and the probation service for one year, and Minister for the Prison Service for three years. I was a teacher for 10 years and have been a father for 50, as well as a grandfather for just a few. I find myself in a very uncomfortable position. I have a great loyalty to and a great length of service in this party. On the other hand, I come here not by appointment by any present power but through my father having preceded me, and I remain here on a vote not of my party but of the whole House. Therefore, I feel that I have to be thoroughly independent in this matter.

I must say to my noble friend that all those spheres of experience that I have chime with the advice that he is getting from all quarters of this House. It is not necessary for me to repeat in a humdrum way what has been so eloquently and inspiringly uttered by others, but I want to tell my noble friend that I cannot possibly follow him into the Lobby on this occasion.

My Lords, I congratulate the noble Lord, Lord Elton, on what he has said and the courage that he has shown. There are just two other questions that I should like to ask the Minister. I was once upon a time, and for some years, a Prisons Minister.

The first question rests on the fact—noble Lords can check this—that young women are most likely to engage in serious self-harm between the ages of 16 and 20. Self-harm is much more common among women prisoners than among male prisoners; it is four times as high—so disproportionate is this attempt to raise sympathy and get attention. Is the Minister aware of these quite striking figures for the very high level of self-harm among young women, some of it serious self-harm, in the very age group that we are considering sending to secure colleges? What steps will be taken to ensure that any girl sent there has no previous record of self-harm?

My second question is quite different. We have all listened closely to the noble Lord, Lord Ramsbotham, and we respect his extraordinary integrity in this House on issue after issue. Is the Ministry of Justice determined effectively to rule Parliament out of a system of consultation, advice and help, which I believe that most of us in this House are crying out for? We have seen an astonishing list of dismissals of Parliament in the course of proceedings on this Bill. I find it very unfortunate, and I am not sure that it is what the Minister intended, but it is certainly the net effect.

Will there be any consultation with the House about who will be the author of this report? In the light of the Home Office committee on sexual abuse, one can see what an intensely controversial question that will be. Will there be any willingness to listen to the House on consultation after the plans have been put forward for submission to the ministry? Finally, will the Minister consider whether the response given by the Commons to our amendments—namely, “it is not appropriate”—is an appropriate argument or even an appropriate answer to the many issues raised by the deep concern of many of us, of all parties, in this House?

My Lords, will the Minister briefly explain precisely why the Government feel unable to take the further step, which seems very reasonable to a lot of noble Lords who have spoken, of allowing parliamentary approval of that next step—for younger boys and girls to go into secure colleges? There is some bemusement over why the Government could not take that further step, as it seems unreasonable to withhold it. It would certainly help me in my decision in voting to understand the reasons why the Government feel unable to agree to that procedural step.

My Lords, is the Minister aware that teenagers and pre-teenagers are the most racist groups, particularly those who are disturbed? Putting young, vulnerable minorities in the context of intense racism creates future terrorists. Has the Minister considered the cost to this nation of creating more enemies within its own people?

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?

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.

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.

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—

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.

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.

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?

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.

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.

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?

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.

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.

Motion B

Moved by Lord Faulks

That this House do not insist on its Amendments 97, 98, 99, 100, 101 and 102, to which the Commons have disagreed for their Reason 102A.

Lords Amendments

97: Clause 64, page 64, line 35, leave out “must” and insert “may”

98: Clause 64, page 64, line 37, leave out “not” and insert “decline to”

99: Clause 64, page 65, line 10, leave out “must” and insert “may”

100: Clause 64, page 65, line 13, leave out “must” and insert “may”

101: Clause 64, page 65, line 33, leave out “must” and insert “may”

102: Clause 64, page 65, line 40, leave out “must” and insert “may”

Commons Reason

The Commons disagree to Lords Amendments Nos. 97, 98, 99, 100, 101 and 102 for the following reason—

102A: Because it is appropriate to impose duties, rather than to confer discretions, on the High Court and the Upper Tribunal in connection with judicial review proceedings in which it is highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.

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.

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?

Moved by

As an amendment to Motion B, at end insert “, but do propose the following amendment in lieu of those Amendments—”

Amendment in lieu

102B: Clause 64, page 65, line 46, at end insert—

“( ) The duties of the court or tribunal under section 31(2A), (3B) and (3C) of the Senior Courts Act 1981, or section 16(3B), (3C) and (3D) of the Tribunals, Courts and Enforcement Act 2007, are subject to the discretion of the court or tribunal to act otherwise where it considers it in the public interest to do so in all the circumstances of the case.”

My Lords, I am very grateful to the Minister. His door has been open in recent weeks to discuss matters of concern and interest with noble Lords who are concerned about this clause.

On Report, your Lordships voted by a majority of 66 to amend this clause to maintain a degree of judicial discretion. The Government lost that vote because they lost the argument. Judicial review is of central importance to the rule of law. It is the means by which citizens seek to establish before an independent judge that public authorities, including Ministers, have acted unlawfully.

The courts do not just grant remedies for the individual applicant. They state what the law requires so that Ministers and officials know what test to apply in future cases. This clause, if enacted in the form that the Government wish to see, would oblige a judge to dismiss a judicial review application at the outset, however important the issue and however strong the argument that the defendant, whether it is a Minister or a civil servant, has broken the law. Requiring a fair procedure, and requiring Ministers and officials to comply with the law of the land, is not a technicality. It is very disappointing that, despite the substantial majority in your Lordships’ House on Report, the Government have offered no concession whatever on this clause.

The issue before your Lordships’ House is a very simple and important one. There needs to be an element of judicial discretion. The absence of judicial discretion is not, to use the Minister’s words, a fair balance. During the one-hour guillotine debate in the House of Commons on all three of these judicial review issues—they were taken together—a Conservative Member of the House of Commons, Mr Geoffrey Cox, said that he could not support the Government because this clause will mean,

“that flagrant and absolutely unacceptable behaviour by the Executive could be condoned by saying, ‘Well, it made no difference.’ There are times when courts ought to mark a fundamental lack of due process”.

I agree. More importantly, so did Mr Grayling. The Lord Chancellor intervened in the debate and said:

“The ‘exceptional circumstances’ provisions would allow a judge to say, ‘This is a flagrant case and must be heard’”.—[Official Report, Commons, 1/12/14; col. 82.]

The Lord Chancellor made the same point at col. 72. That is precisely the defect of this clause. It contains no exceptional circumstances provision. It contains no power for the court to say, “This case must be heard”. The clause imposes an absolute duty on the courts to dismiss cases where it is highly likely that the defect would have made no difference, however flagrant the legal error and however important the issue from the perspective of the public interest. Since the Lord Chancellor in the debate recognised the obvious need for a degree of discretion in this clause, it is incomprehensible to me why the Government are so determined that the clause must be enacted with no degree of judicial discretion.

In those circumstances, I invite the House to ask the other place to reconsider this matter and reconsider it on the basis of what this clause actually provides, and the damage that it will do to the rule of law in this country. The Motion in my name now before the House adds a reference to the public interest. It is an improvement on the amendments approved by your Lordships’ House on Report in that it identifies the purpose—the essential purpose—of retaining a degree of judicial discretion.

On this issue of the rule of law, the House of Commons should be asked to think again. I beg to move.

My Lords, it is a measure of the importance of the matters that we are now debating, and upon which we will have to vote, that the noble Lord, Lord Pannick, made special arrangements to fly back this morning from Moscow at 5.45 am, Russian time. I do not know whether the Lord Chancellor has ever been to Moscow, but I suspect that Mr Putin’s views about holding government and other public bodies to account for the lawfulness of their decision-making would be closer to the Lord Chancellor’s than to the noble Lord’s.

After all, Mr Grayling has proclaimed that judicial review is,

“not a promotional tool for countless Left-wing campaigners”,

or, as he put it in the course of the 58 minutes that the House of Commons devoted to debating the amendments passed by your Lordships’ House:

“Judicial review was never intended to be a tool for pressure groups to seek to disrupt perfectly lawful decision making in Government and Parliament, it was never designed to be used as a political campaigning tool, and it was never intended to put the courts above the elected Government in taking decisions over the essential interests of this country”.

He went on to claim that,

“in far too many examples, that is precisely what it has become”.—[Official Report, Commons, 1/12/14; col. 70.]

Oddly enough, the Lord Chancellor failed to provide any examples of these malign abuses of the system, the essential interests of the country that he felt were under threat or indeed the identity of the so-called abusers. On Report, the noble Lord, Lord Faulks, at least condescended to cite an example. Members may recall shuddering with horror at the revelation that the building of a supermarket in Yorkshire was delayed by all of six months due to an application for judicial review—brought, incidentally, not by a left-wing or other pressure group but by a commercial rival of the developer. I do not blame the Minister at all for relying on this underwhelmingly persuasive case. He was struggling with a grossly inadequate brief—something that I suspect from time to time he has had to deal with over the years, though perhaps in less important contexts.

The Secretary of State for Justice, moreover, whose title looks increasingly like one coined by George Orwell, gives the game away in presuming that, “perfectly lawful decision making” is what is at stake. The implication is clear: what the Government legislate is ipso facto lawful. In the fantasy world in which the courts are besieged by meddlesome litigants pursuing left-wing causes—litigants such as the Countryside Alliance and the Daily Mail—the courts are deemed to be wholly incapable of sorting out the legal wheat from the campaigning chaff. Typically, though, Mr Grayling, in the amendments that he has produced, which were never spelled out or indeed debated in the Commons, ignores the basic requirements, already enshrined in law and practice, that permission from the courts is required both to bring a case to hearing and for third parties to intervene. The Government, themselves a possible defendant in these cases, seek to restrict the exercise of judicial discretion in their own interests, and on the basis of the flimsiest evidence of the abuses that they affect to detect in the working of the system and the decisions of the courts. In the unlikely event of Mr Putin becoming aware of the Government’s approach, he would be lost in admiration.

The Opposition support the amendments from the noble Lord, Lord Pannick, Motion B1 and Amendment 102B to Clause 64, which would preserve the court’s discretion to grant judicial review where the court considers it in the public interest to do so. I invite my colleagues and others to join the noble Lord in the Content Lobby.

It would be convenient if at this stage I indicated the Opposition’s position in relation to the other amendments. We support the noble Lord’s amendment to Motion C, dealing with Clauses 65 and 66, and his amendment to Motion D, which sets out in Amendments 107A to 107E what purport to be the Government’s concession in relation to the financial position of interveners. I remind the House again that interveners must obtain permission before taking part in any application. The Government’s amendments would oblige the court to order an intervener who has been granted permission to pay costs to any other party in any one or more of four instances. The instances are: under subsection (4A)(a) of Amendment 107B, where they act as a party, although the court already has a discretion in such a case; under subsection (4A)(b), where the intervention has not provided significant assistance taken as a whole, whatever that is supposed to mean; under subsection (4A)(c), where the intervention relates to matters not necessary to resolve the issue—although, again, if they did not, permission would presumably not be granted in the first place; and under subsection (4A)(d), where the intervener has behaved “unreasonably”, whatever that means in a context in which the court already has a discretion.

The potential for mandatory awards of large costs against interveners is self-evident and self-evidently chilling. In addition, I understand that the question of financial resources and the extent of any liability would be left to the Rule Committee to determine, subject only to a negative resolution. In this context, it might be thought that this is a highly debatable procedure for dealing with such an important issue in such an important area.

I do not need to enlarge on the weight of opinion opposed to these measures in the senior judiciary, past and present, or the wide range of opinion, including that of the Joint Committee on Human Rights and the Equality and Human Rights Commission, not to mention such subversive organisations as Age UK—I declare my interest as honorary president of Newcastle Age UK —Mencap, Mind, the National Autistic Society and many other highly esteemed and reputable organisations in the voluntary sector.

I conclude with a particular appeal to Liberal Democrat Members of this House, several of whom voted for the amendments in your Lordships’ House when we last debated this matter on Report, and several of whom joined some of us—from the Cross Benches and these Benches—in the Division Lobby in the vote just taken. Sadly, very few of their colleagues voted in support of this House’s amendments in the House of Commons. If anything has distinguished the Liberal Democrats—and particularly the former Liberal Party—it has been a sincere attachment to civil liberties and the rule of law. They have been vigilant in questioning, and, from time to time, opposing, policies of different Governments that were perceived to be in conflict with those legitimate concerns. I believe that many are troubled by what this part of the Bill seeks to achieve and by the Government’s amendments. There is nothing, of course, in the coalition agreement that refers to the measures we are now debating. If ever there was a case—with a general election only six months away—for this House to exercise its role in scrutinising and amending important legislation, and in making a judgment on the merits rather than according to political calculation, this is such an example. My appeal to Liberal Democrat Members—

I am grateful to the noble Lord for giving way, and I know that what he is saying is being said in a constructive spirit, but he might like to bear in mind that lectures from the Labour Party on civil liberties are not popular in the Liberal Democrats. He might possibly just leave it to our own consciences to determine how we vote on this matter.

It is, of course, entirely a matter of conscience for the noble Lord and others, and I would not defend everything that Labour Governments have done in this area either. That is why I referred to the stance that Members of the noble Lord’s party took on proposals made by more than one Government. It is a perfectly fair point.

I hope that, in addition to Members of those Benches, there may be other Members—from the Conservative Benches, perhaps—who will follow the example not only of some Conservative Members of Parliament who voted for this House’s amendments in the Commons, but even, much to my surprise, of the two UKIP MPs. I would not normally be encouraging people to follow where UKIP has led, but in this particular case, they were for once on the side of the angels. I hope, therefore, that this House can support the noble Lord’s amendments and, in so doing, encourage the Government to rethink their direction of travel in this very sensitive area of the rule of law and of the way in which government in this country—not just central government, but local government and other executive agencies—carries out its important responsibilities.

My Lords, I support Motion B1 in the name of my noble friend Lord Pannick. Noble Lords will know that I have expressed serious concerns about Part 4 at every stage of the Bill, and I remain deeply troubled. I know only too well how much vulnerable people, especially those who are disabled, rely on state services and how catastrophic it is when things go horribly wrong. I feel that in the other place the Lord Chancellor is still peddling the line that judicial review has been hijacked by pressure groups for political campaigning, citing again and again the example of Richard III. If political campaigning includes campaigning for justice and people’s access to justice, then I am very happy to plead guilty; I am one of those campaigners.

The Lord Chancellor also said in the other place that tough times mean tough decisions and tough love. I agree with that, but judicial review is even more critical in times of stress—in tough times—to ensure that the Government do not ride roughshod over their citizens. These reforms must be seen in the context of cuts to legal aid which already hinder access to justice for those at the margins of society, especially disabled people. This is not an issue about lawyers protecting their status or income. I am sorry, but it just is not. Where is the evidence? It is truly about weakening the ability of ordinary vulnerable people to hold public bodies to account and increasing the power of the state.

Clause 64, if not amended, would require judges to refuse judicial review if the outcome would be highly likely to be no different. It would remove their discretion. We need their discretion. The Government want to exclude judicial review for what they call “minor technicalities” —for example, the need for a bit more consultation. So much for due process. Removing judges’ current discretion would allow unlawful or dishonest decisions to go unchecked and public bodies to be let off the hook. It would also dramatically change the role of judges in second guessing what might have been. I cannot understand it. It cannot be right. The amendments made by this House to restore judicial discretion were rejected in the other place. I thank my noble friend Lord Pannick for his Motion and entirely support it. I seriously urge all Members of your Lordships’ House to think beyond the campaigning and those odd cases where it may have been quite ridiculous and to think about the hundreds of very vulnerable people who will need this over the coming years as, I have to tell the House, things are getting really tough for us.

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—

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.

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.

If you know about judicial review, you would know about its early history. One problem of judicial review during its early history was that it could be bypassed. Just as the present legislation applies only to judicial review, it is possible to take before the courts the same matter under an application for a declaration. If that happens, all the safeguards are bypassed. Therefore, the judges had to find ways to avoid litigants bypassing judicial review by going for a declaration. The declaration was imported into our system in England and Wales fairly recently, not least from Scotland, where it is used to great effect as a declarator. The declaration means that the court has power to declare before something happens whether it is unlawful or not. Unfortunately, perhaps, it is not used as much as it should be. As someone who had the task of defending the Government before the courts—for example, in planning applications —I was deeply concerned that, often during the course of a very long planning inquiry, points of law would arise and one had to wait until it was over before the position could be determined. With the benefit of a declaration, it could be determined. At the time of the application for permission to apply for judicial review, in many circumstances one will not know what the correct answer is. It is therefore important and in the public interest that issues are established, not only for a particular case but for the law as a whole in the process.

On looking at the proposal we are considering, it may be clear to your Lordships that it attacks not only the stage of the trial but also the stage where permission is being sought for leave to apply for judicial review. If it can be shown at that stage, to the satisfaction of the judge, that it is highly likely that it may not affect the applicant, he is then under a responsibility to stop the proceedings ever getting to a hearing. On the one hand, there would be an act which could be established as unlawful and yet, if this amendment as now encoded were to survive, the law could not be clarified.

Looking back over my experience, I could give many examples of cases where I might not have been able to ignore the effect of this provision when it would not be in the interests of justice to do so. I am not going to take up time, because there is not the time for me to do that, but I would readily do it if it were necessary. I suggest that it is obvious. Last week the Lord Chancellor lost a case which, at first sight, may have seemed very petty. The question was whether a prisoner could order a book. It was said that, because of a procedure initiated by the Lord Chancellor, there would be no access to that book. On 5 December, Mr Justice Collins, who has had great experience in these matters, came to the conclusion that the guidance which the Lord Chancellor wanted to be implemented as the practice in prisons was not lawful. No doubt there are still opportunities to appeal the matter. There are arguments that can be advanced against the judge’s decision, but if you read the decision you can see how important it is that the facts of the individual case are considered. You cannot have a blanket approach because there will be very similar cases where, in one, a certain view should be taken and leave to proceed not be given whereas, in the other, it should be.

I ask your Lordships to say that, in the interests of justice and of the rule of law, the matter should go back to the other place with the opinion of this House as sought by the noble Lord, Lord Pannick.

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.

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.

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.

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.

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.

The fifth thing I want to say is that I feel that the treatment of this House on these issues has not been what we have expected in the past. When I was Secretary of State I expected my Minister in the House of Lords to defend the Bill and to get the essentials, but to be free enough to be able to say, “Well, the House clearly doesn’t find it possible to accept this. Therefore, I’ll go away and see if I can find a way through”. I do not blame my noble friend for that. What I blame is what appears to me to be an increasing habit to say that that is not what we are here for. If we are not here to uphold principles of this kind, then we should not be here at all.

My real worry about this whole series of returns, having won the argument, having had a significant majority, having been advised by some of the best legal brains in the country, and having had—if I may dare say so to the noble Lord opposite—the support of large numbers of Conservatives and Liberal Democrats and almost every Cross-Bencher, is that, after all that, I hope, had I been a Minister, I would have tried to find a way through that was as simple as the one that has been presented by the noble Lord, Lord Pannick. This is a very generous amendment; for me, it does not go far enough. However, I shall support it. I hope that real Conservatives will support it because it is about the rule of law—that is really why I objected to the way that the noble Lord opposite spoke—which all of us in this House, irrespective of our parties, should support. That is why we are here. If we do not defeat this and insist on the amendment we will not have done our duty.

My Lords, I will not detain the House for more than a few minutes. I listened carefully to the last debate on this issue. There was nothing to add to the wide experience, in more than one capacity, of the noble and learned Lord, Lord Woolf, and of the noble Lord, Lord Pannick. In my non-ministerial years while at the criminal Bar, dealing with murders, rapes and frauds, the opportunities of polishing my talent in judicial review applications were few and far between. Hence, I did not speak earlier. However, what I want to say—it is a fundamental point—is that what I find offensive is the fettering of judicial discretion in a constitution that does not have the protection of a Bill of Rights. That is important.

The only point that I want to make in this debate is to show and illustrate, from my own experience, how government departments respond to an adverse finding in a judicial review. The Attorney-General’s office, for which I was responsible, has never, to my knowledge—certainly not up to my time—been judicially reviewed. However, the Attorney-General is responsible in Parliament for the Director of Public Prosecutions and supervises that office. By Act of Parliament, the Attorney-General appoints the director. He or she would be seen week in and week out, when significant cases would be discussed, although it is the director alone who takes the decision whether or not to prosecute.

Three important cases of death in custody—nothing, to my mind, having had a constituency next to a prison, would cause greater concern than an issue of that kind—were judicially reviewed as to the director’s decision not to prosecute. The court criticised the Crown Prosecution Service severely. What did I do? I immediately set up a non-statutory inquiry under a senior retired circuit judge, His Honour the late Gerald Butler, whom I located late on a Sunday night in the serenity of Cornwall and seduced him to do some additional work. His published report was extremely critical. I knew immediately that lessons had to be learnt and supported the work that I had undertaken to review fundamentally the Crown Prosecution Service. This was important additional evidence and it was essential to avoid a recurrence. Firm and speedy action was necessary. I hope that that brief example illustrates how one government department responded immediately to the findings of the court. The result was a huge transformation in the operation of the Crown Prosecution Service.

I have no reason to believe that any other government department does not take the findings of judicial review equally seriously; hence my firm belief in the unfettered judicial curb on the Executive—to ensure legality, to ensure that Ministers believe and act legally—and in the continuation of the long-standing judicial discretion which is the bastion for the maintenance of the rule of law.

Mr Geoffrey Cox, a Conservative Member of Parliament, asked the Secretary of State for Justice what he meant by “a minor technicality”, and he replied by giving examples of a failure of proper consultation. In my experience, a failure of proper consultation can be a very serious matter. I want to give just two examples of cases that I was involved in—one I won and the other I lost. One was about closing Barts Hospital. A judicial review challenge was brought on the basis that the Minister had not properly consulted before deciding to close the hospital. The judge exercised discretion in any event, and we lost. However, it was a very important exercise because it involved the court in calling to account what the Minister had done to see whether it was an abuse of power; it was not.

In the other case, involving a Labour Government, the consultation was about the Export Credit Guarantee Corporation and whether the new rules on anti-corruption had been properly consulted on. It turned out that the only people who had been consulted were large corporations. A small NGO, the Corner House, brought a challenge based on the fact that it was not a proper consultation, and it succeeded. As a result, the Minister had to do a further, proper consultation and to beef up the anti-corruption rules. I give those two examples to show that the Secretary of State for Justice simply does not appreciate how important a breach of procedural good government can be in a particular public interest case.

I want to say two other things. One is that the Joint Committee on Human Rights, on which I serve, has repeatedly pointed out that the Government have produced no evidence, as distinct from ideology, to justify the changes that are being contemplated and are now the subject of ping-pong, and they still have produced no evidence. The Constitution Committee, on which I also have the privilege of serving—not a left-wing, radical, subversive organisation—led by its chair, the noble Lord, Lord Lang, on 4 July asked the House to reflect on the wisdom of the Government pressing ahead with the reform to judicial process despite the warnings of the judiciary. In spite of the Constitution Committee ringing the alarm bell and repeating the warnings—I will not bore the House with the details—the Government went ahead. As far as I can see, neither of these reports was even referred to by Mr Grayling in the debates in the other place.

It is very important, if we have expert committees that are advising both Houses, that at the very least Ministers do them the courtesy of replying to them in the debate, and they have not done so. I cannot match the eloquence of the noble Lord, Lord Deben, or the eloquence and wisdom of my noble kinsman, the noble and learned Lord, Lord Woolf, in what they have said, but I very much hope that we will rise above party politics this evening.

My Lords, like the noble Lord, Lord Deben, and the noble Baroness, Lady Campbell of Surbiton, I speak as a member of what was last week dubbed the sisterhood and brotherhood of non-lawyers. It is very important that non-lawyers speak in support of lawyers on these issues because, as the noble Baroness, Lady Hamwee, said at Second Reading of the Bill, “These are citizens’ issues”. We are talking about the most marginalised, powerless and voiceless citizens whose concerns are at stake.

I speak also as a member of the Joint Committee on Human Rights. We opposed the original clause on grounds of both principle and practice, including the argument put so powerfully by the noble Lord, Lord Deben, that we should not condone unlawful decision-making. This is of particular importance to the enforcement of the public sector equality duty, a point which has been made to us by the Equality and Human Rights Commission. I declare an interest as the honorary president and a former employee of the Child Poverty Action Group, which, as Sir Stephen Sedley has pointed out, was a pioneer in the use of judicial review to further the interests of children in poverty and their parents and played an important role in elucidating the law on social security to the benefit of everyone involved.

I will recount briefly a recent case that is relevant also to Motion D, in which the CPAG acted as an intervener. It was a judicial review against a decision to cut the funding for local welfare assistance schemes—which replaced the discretionary social fund—which we know, from a growing body of evidence, is causing real hardship. The decision has taken place without consultation and without first carrying out the review that had been promised to Parliament during the passage of the Welfare Reform Act 2012. As it happened, the Government settled the case—they clearly did not think that they would win it—and have now consulted. The CPAG’s solicitor said to me that if the Government’s version of the Bill becomes law, this intervention probably would not have been possible,

“because of the uncertainty around whether our charity would end up liable to pay costs. As a result, the Courts would have been ignorant of the broader issues at stake”.

Indeed, the case may not even have got permission because the Government might have argued that, even if they had consulted, their decision would have been highly likely to be the same. I hope that that does not prove to be the case. We do not yet know what the decision will be. However, in answer to a Written Question just the other day, I was told that they have had over 5,000 responses to that consultation. That is not a mere technicality; that is about listening to what local authorities and other citizens of this country think about this issue.

To echo the very powerful speech of the noble Lord, Lord Deben, at issue here are the accountability of the Government, the rule of law and access to justice—the very kind of principles that your Lordships’ House has traditionally upheld. I hope very much that your Lordships will uphold them again today.

The amendment proposed by the noble Lord, Lord Pannick, will do no more than bring the law into accord with the position as described, with apparent approval, by the Secretary of State for Justice in the other place. I hope the Minister will do what he has not yet done, which is to explain to this House why it is open to objection.

My Lords, I strongly support what my noble friend Lord Deben said in a truly remarkable, powerful and splendid speech. What he did not say—which I think that we can all say—is that the other place, of which I was proud to be a Member for 40 years, was misdirected by the Lord Chancellor. To misdirect a jury is not exactly a trivial matter but the Lord Chancellor has had the good grace and dignity to apologise. The fact is that the House of Commons made its decision having been wrongly advised and made it in a very short space of time. An hour was given up for debates on which your Lordships’ House had spent considerably longer.

Like my noble friend Lord Deben, I was somewhat concerned by the remarks of the noble Lord, Lord Beecham. He is not normally like that but he almost put me into a position where I could do no more than abstain. I say to him that no party has the monopoly over upholding the rule of law. I am inclined to vote for the amendment in the name of the noble Lord, Lord Pannick, because I am a Conservative and because, like my noble friend Lord Deben, I am proud of the part that the Conservative Party has played over the centuries in upholding the rule of law.

I say also to all my colleagues on these Benches that this is not a question of party loyalty or disloyalty. I was in the other place for the whole of the 16 years that my noble friend Lord Deben was a Minister. Of course, I was not a Minister for any of those years and frequently found myself at odds with things that the Government proposed. On a number of occasions I voted accordingly because I always tried to uphold the dictum that one’s order of priorities as a parliamentarian in the other place is country, constituency and party. In your Lordships’ House, we do not have constituency responsibilities but we do have national responsibilities.

If we believe that something is being done that is not in the national interest, we have an absolute duty to speak and to vote accordingly. If this House has any point or purpose—I echo in slightly different words something said by my noble friend Lord Deben—it is to say to the other place, “You have, we believe in all humility, got it wrong. Please, please think again”. We did that last time and the other place did not. It did not think again because it was wrongly advised by the very man who should have been advising them correctly.

Therefore, we have every right this evening to say, “Please reconsider and take a little longer in reconsidering”. We are not talking about the convenience of governance or about narrow party advantage, we are talking about something that is fundamental to the survival of a parliamentary democracy and to the rule of law. I very much hope that my noble friend the Minister, for whom we all have real regard, will be able to say something that will satisfy us, but I am bound to say that I am not overoptimistic. If he does not, I shall have no alternative but to go into the Lobby behind the noble Lord, Lord Pannick.

My Lords, when I intervened on the Minister and asked for the evidence or indications to underpin the need for this amendment, he, as the House heard, declined to give the same. It was important to add evidence or indications. I perfectly accept that a lot of the matters with which we are dealing in this amendment cannot be susceptible to simple adding or subtracting.

I want to make one point. I believe that we live in a time of democratic crisis. The public are voting for UKIP and, to some extent, they voted in droves for Scottish independence because there is a real breakdown of confidence in the main parties. We all know that there is a breakdown of trust in the great institutions of our state, in business and in us. We cannot brush aside the expenses tragedy of a few years back as if it is all forgotten and done with. It is not. I went to Clacton and canvassed. My goodness, it is not. There is a breakdown in trust. Of all the times to bring in a provision as contained in Clause 64, this is absolutely not the time.

Surely it is a simple point that the one thing that controls and contains any Government, however strong or however wrong, is the instrument of judicial review. I do not think that it is justifiable at all to reduce the extent and power of judicial review to any extent. That is the rule of law. If the proposal were to be brought forward, it surely could be brought forward with any semblance of decency only if the evidence for the need for it—the essentiality of it—was abundantly plain. We all know that it is absolutely as miles from that as it could be.

I am completely persuaded that there is only one thing to do tonight. I regret voting against a heavy whip but sometimes we all know that we have to do that, which is what this House is here for. I say again, we cannot take the step proposed by the Government to reduce the extent and power of judicial review.

My Lords, perhaps I may add an element of balance to this debate, although balance may not be exactly the right word since I probably am the only person who is going to speak in support of my noble friend the Minister in order that the debate may be not wholly, completely 100% unbalanced but a little bit balanced. I want to explain to noble Lords what worries us. I am not a lawyer so I cannot comment on some of the technical points that have been made. I am worried that there is considerable abuse of judicial review.

My noble friend Lord Deben—who was kind enough to say on a previous occasion that we have never disagreed on anything even when we were in different parties, which is largely true—said, in relation to the example brought forward at the beginning of the Minister’s speech, that it was not very convincing. I remind the House of the example which is, I think, shocking and a defining example of how judicial review can be abused. That point is made by the noble Lord, Lord Adonis, in his book, Education, Education, Education. He wrote:

“As soon as academy projects became public, opponents seized on judicial review as a means to stop them. Ultimately they failed, but only after years of lengthy, expensive and immensely distracting court actions, mostly funded by legal aid with the real opponents—the National Union of Teachers and anti-academy pressure groups—masquerading as parents too poor to afford to pay legal fees”.

That is an example of some years ago.

My understanding is that that is happening today not only in education but in rail. For example, the Government have already had to spend £460,000 in outside legal fees to defend the judicial reviews against HS2. I am aware of judicial reviews in regard to roads. Development was rather scoffed at by the noble Lord, Lord Beecham, but in many instances it means housing projects and we need more housing in this country.

Is my noble friend really saying that the legitimate environmental concerns of people who have misgivings about HS2 should be overridden regardless? Surely it is entirely legitimate for those who have real interests to be able to pursue those interests by legal means.

Indeed, but the point about judicial review is that it is a technical discussion about the process of law-making. Have the Government behaved illegally? Have they consulted properly? That is what judicial review is about. If you want to have an argument about HS2 it should take place in the Chamber quite openly. There are quite clearly profound differences of opinion about the process of HS2 but it is not judicial review that should be encompassing that. There should be an open debate about the merits and demerits of a particular project.

Is the noble Lord really suggesting that the whole planning appeals procedure should be abandoned for government schemes? That is the clear implication behind what he said. As he said there are—I forget the adjective he used—many abuses anyway of judicial review, would he like to give us perhaps three examples of cases that have been an abuse of the process so we can have an evidence-based discussion.

I am personally aware from my experience in this House and as the former Member of Parliament for Orpington of cases affecting Travellers and the green belt. My constituents were concerned about Travellers camping on green belt land. Ultimately, Bromley Council, which was the council in question—

I want to challenge the noble Lord. Is he saying in this House that Travellers do not have the right to challenge the Government by judicial review? If so, we might as well throw away all our democratic values.

No. What I am saying is that the judicial reviews raised by Travellers in Bromley were ultimately found to be completely meritless. They were meritless because Bromley Council, which has more Travellers than any other council in the country, had plans on how to deal with Traveller sites. Therefore, it was an argument about the nature of the problem of dealing with Travellers. It was not something that could be dealt with by judicial review. That is my point. The abuse of judicial review arises from the fact that questions of merit are being subject to judicial review simply because lobbyists and others are using judicial review as a route to object to proposals they do not like.

If I can complete the list of examples, it was not only green belt and Travellers—

I have taken advantage of now being able to look up online in this House the suggestions as to why these cases are important. The first one is a case study on residential development in which the judge decided that there were two grounds of law which ought to be met. They were discussed and both were dismissed. Is my noble friend really saying that because it was inconvenient those two particularities of law should not be looked at? There is a second case put before us about a free school which is quite complicated but there were people who had a real issue. They are the only two cases to explain the argument that there have been more and more cases of judicial review. Frankly, there have been more and more cases of the Government interfering in the detailed arrangements of life and therefore it is not surprising that the number of judicial review cases has increased.

I cannot comment on a churlish Government interfering more and more in the minutiae of daily life. That is something the Government would have to answer. None the less, the fact remains that the use of judicial review, where people are really arguing about the merits of a project, case or change in the NHS, in education or whatever, is fairly extensive. Indeed, I am told by friends and acquaintances in the lobbying industry that if you go to a lobbying company and say, “We are worried about this project and we want to object to it.”, one of the things it will tell you is that if you can afford an expensive lawyer it will find a technical means through judicial review of objecting to the proposal. That is a standard part of the package, I am told. It is hearsay, I fully accept that, but I am told that it is a standard part of the lobbying system in this country. They are the sort of examples I am aware of. It is not particularly statistical evidence but in this field that is rather hard to come by. None the less, it gives a flavour of what is happening out there in the ordinary world.

I want to make one simple point. Even if the noble Lord is right that there are some cases of abuse—there are in every sphere of life including the police or indeed Parliament itself—is it not worth paying that price for the man in the street or the small community to feel that they have some way of redress against large institutions, government and big business? Many people feel it is their only way of making their point. We should not deprive them of it.

That is precisely why, as I understand it, my noble friend is introducing in a later amendment a de minimis clause precisely designed to exempt small communities. When there is a project and neighbours perhaps contribute £100 or £150 each to object to it, that would be entirely legitimate and I would be wholly in favour of it. That would not be stopped by this precisely because the Government have recognised that point and in a later amendment are introducing a de minimis clause.

That is not correct on the first amendment. There is no qualification being introduced by the Government.

I totally agree. I said on a later clause. Here, we are dealing with a situation where the actual result would be highly unlikely to make any difference. The noble Lord’s point would not occur because obviously they would hope to win their case. Here we are dealing with cases where it would be highly unlikely to make any difference at all and therefore the point made by the noble and learned Lord, Lord Woolf, does not arise.

There is abuse which I think is doing the rule of law and judicial review damage. That is a real problem. How does this Bill affect that? There is a suite of measures here to deal with the treatment of interveners, financial transparency and lowering the bar slightly in meritless cases where it would make no difference to the eventual result. That is a complex series of measures and we do not really know—I do not suppose the Government know entirely—what effect they will have but clearly it is an attempt to remedy abuse. Remedying abuse in this case would serve the purpose of government. It would certainly help judicial review because it would diminish the impression that people have, rightly or wrongly, that it can be used and abused in the way I have described and is happening up and down the country. You could argue that it would not really detract from judicial review but in many ways would improve its performance. I say to my two Conservative colleagues that one aspect of being a Conservative is that very often you want to improve things for the sake of keeping them as they are. It is a classic Conservative position. I would not regard it in any way un-Conservative to be asking to improve these matters rather than defending the status quo, warts and all.

I think there is a serious problem here. The Government are addressing it. Noble Lords may disagree with the way they are addressing it. I think that the Government need some understanding of where they are coming from. In response to the views in the other place, they have listened and changed their position; not here, I agree, but in later amendments. I wholly agree that the discussion in the other place was truncated and in many respects very unsatisfactory, as has been pointed out. None the less, between the two Houses, we are beginning to get to a more rational and sensible position that acknowledges that there are problems and tries its best to find a way through without damaging judicial review.

The Government have repeatedly characterised this clause as being concerned with cases involving procedural irregularities only. Indeed, the Minister used the term “technicalities” as a diminutive, which is inappropriate. Such terms are inaccurate in relation to this clause. At very best, they are inadequate. These are public law cases concerned with unlawful conduct of the Executive where an organ of government has ignored the law in taking or carrying out decisions.

With the greatest respect to my noble friend Lord Horam, I must say that his assertion that the system of JR is rife with widespread abuse is unsupported by the evidence. Nor does he take into account the fact that judicial review is, at its heart, about decision-making in accordance with law. Nor does he take into account the fact that, certainly over recent years, judges have made it very difficult indeed, in the exercise of their discretion, for unmeritorious cases to get permission to proceed.

I do not regard this clause as merely protecting government from the effects of minor procedural errors that have made no difference to decision-making. I regard it, as do other noble Lords who have spoken, as an attack on the rule of law and an attack on parliamentary democracy. To take the example given by my noble friend Lord Lester, where a statute is passed by Parliament, often after discussions such as the ones that we have had on this Bill, which requires that the Government consult before making a decision, it should not be open to government to flout that requirement imposed by Parliament and then claim an immunity from judicial review on the basis that a lawful consultation would have made no difference to the outcome of the decision-making so that permission and relief should be withheld. That is the heart of the point made by the noble Lord, Lord Deben.

The public interest amendment of the noble Lord, Lord Pannick, reflects an amendment that I moved in Committee. If carried, and if this House insists on it, a court will not be compelled to say, where a government department has acted unlawfully, that the decision would have been the same anyway and therefore permission to apply for judicial review must be refused and relief must be withheld. The court will instead be able to say that the decision was illegal and, before it can be properly made, the Government must follow the law—quite simply because that is what the law requires. That is the rule of law. That respects the will of Parliament. That gives effect to be principle of government accountability. This House has a constitutional duty to be very careful indeed when what is happening here happens—when the Executive seeks parliamentary sanction for breaking the law, as this clause does. I shall support the amendment of the noble Lord, Lord Pannick.

My Lords, the question in this particular amendment is a simple one. The courts have developed law in relation to situations in which the outcome would not be any different if the conduct complained of had not occurred. My understanding of the decision in that area is that the court may decide, if it concludes that the result would inevitably be the same, that the relief is to be refused.

The government Motion that is the subject of this substantial debate simply raises the question of whether that would be inevitable or “highly likely”. In the civil law, of which judicial review is part, the ordinary rule is that the balance of probabilities determines the fact. That is the question that was raised here and there is quite a lot to be said for that point of view. But the situation tonight is affected by the way the debate was conducted in the other place. It is not for us—it is certainly not for me and not for any of your Lordships—to criticise what happened in the other place. On the other hand, the Lord Chancellor has apologised to a Member of the other place for the mistake that he made, which is fairly fundamental to the consideration of this amendment. Therefore, for my part, I would like to see this amendment going back to the House of Commons, not necessarily to change the result—that is a matter for the Commons—but so that the debate should proceed on a basis that is 110% correct.

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”.

The noble and learned Lord, Lord Woolf, made some serious allegations about the Lord Chancellor’s regard for the rule of law, and that is a matter on which I think he has given evidence to the Constitution Committee. The Government believe that the reforms of judicial review are part of a natural improvement of the justice system. They do not fetter the independence of the judiciary or the very useful and fundamental role that judicial review plays. However, I do not think that anybody could realistically suggest that judicial review is not sometimes open to abuse. It remains valuable—indeed, more than valuable; it is critical—but I suggest that this reform is modest. It will satisfy the very public benefit and the public interest test that features—unnecessarily, we say—in the amendment put forward by the noble Lord, Lord Pannick.

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?

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.

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.

Motion C

Moved by

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

103: Clause 65, page 66, line 10, after “paragraph” insert “or, notwithstanding a failure to do so, the court in its discretion considers that it is nevertheless appropriate to grant the applicant leave to make the application for judicial review”

104: Clause 65, page 66, line 32, after “paragraph” insert “or, notwithstanding a failure to do so, the tribunal in its discretion considers that it is nevertheless appropriate to grant the applicant permission or leave to apply for relief”

105: Clause 66, page 67, line 1, leave out “must” and insert “may”

106: Clause 66, page 67, line 7, leave out “must” and insert “may”

Commons Reason

The Commons disagree to Lords Amendments Nos. 103, 104, 105 and 106 for the following reason—

106: Because it is appropriate to impose duties, rather than confer discretions, on the High Court, the Upper Tribunal and the Court of Appeal in connection with information about the financing of applications for judicial review.

Amendments in lieu

106B: Clause 65, page 66, line 21, at end insert—

“(3AA) Rules of court 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).”

106C: Clause 65, page 66, line 43, at end insert—

“(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).”

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

Moved by

As an amendment to Motion C, leave out from “House” to end and insert “do insist on its Amendments 103, 104, 105 and 106”.

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.

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.

I would suggest that one should look up the average cost of a judicial review application and say that if the individual concerned is contributing less than, say, 10%, 15% or 20% of the costs, then that figure would not lead to any cost implications for that individual. However, I am not the one who is putting forward this proposal; it is surely for the Minister to come forward to the House and tell us what his proposal is. This House voted on Report that it was not satisfied with the Government’s approach. The Government now come forward and invite the House to agree with the other place by reference to this new proposal, and I simply suggest to the House that the Government’s proposal cannot be adequate unless your Lordships are told what the relevant figure is. I beg to move.

My Lords, throughout the passage of the Bill, my concern with these clauses has been that they would require any individual who was minded to support a judicial review application financially to disclose to the court his or her resources. That requirement is coupled with a requirement for the court, when considering questions of costs, to consider making a costs order against a supporter of an unsuccessful application, making use of the information disclosed.

With the greatest of respect to his argument, the Minister understated the effect of Clause 66. He said that the court would have to consider the information; what he did not take into account was that the court would be enjoined to consider making a costs order against the supporter. The inevitable effect of that would be to deter people from supporting judicial review applications financially. Group applications—for example, by groups of villagers or school parents—would then become very difficult indeed to fund.

This House’s amendments gave the court a discretion relating to financial information and costs orders. The Commons rejected our amendments and, in response to the concerns raised, my noble friend Lord Faulks and the Government have nevertheless introduced an amendment to provide that rules of court would exempt some supporters of judicial review applications from the financial disclosure requirement, provided their support did not exceed a level to be,

“set out in the rules”.

The difficulty, as the noble Lord, Lord Pannick, pointed out, is that the Government and my noble friend have given no indication of the level of support intended to be covered by their amendment. My noble friend and his officials—I am grateful to him and them for this—have met me and, I understand, others to discuss this amendment. I quite understand their position, enunciated by the Minister, which is that further work would need to be done to set an appropriate level. However, the Government are able to say nothing as to the level intended, except that it is likely to be a “few hundred pounds at most”. That is not satisfactory.

A very limited exemption for small-scale supporters would not significantly reduce the chilling effect of a disclosure requirement. It will not be anything like enough to enable groups to raise meaningful funds to support JR applications. I remind the House that most solicitors now charge about £250 or more per hour, even outside London. For the exemption to be meaningful, a supporter would have to be permitted to contribute several thousand pounds before financial disclosure was required. I accept the formulation put forward by the noble Lord, Lord Pannick, but that could be assessed when formulating the regulations on a percentage basis. I had in mind a figure of 20% as the starting point. I had in mind a figure of somewhere between £10,000 and £15,000 as a likely level below which disclosure would not be required. However, from the Government we have heard nothing, except that it would be figure of a few hundred pounds at most. That is not a significant concession.

What is necessary is that individual supporters providing small or medium sums, who are doing so genuinely to support the application—not as the real principals and not to try to control the litigation—should not be deterred from so doing by the costs threat involved in this clause. We need that as a statement of principle, but it needs to be a statement that shows that the principle has changed to meet the objective that I have just set out.

The Government’s stated aim in these clauses, restated by my noble friend, has been limited to ensuring that wealthy people do not use impecunious applicants to pursue litigation as fronts, with no risk in costs to themselves. He rightly used the argument of shell companies as supporting an argument that their promoters should not get protection. That is an understandable aim, properly expressed by my noble friend, which no one could sensibly criticise. However, I remind your Lordships that the court already has the power to require information and make costs orders against non-parties in such circumstances. However, if the Government wish to legislate to implement their stated aim, it would be entirely reasonable to expect them to limit the legislation to what is required to achieve that aim. That would mean a firm commitment to this House that the level set out in the rules would be such as to exempt from financial disclosure small and mid-range supporters of judicial review applications who were not seeking to control the litigation.

I have made it clear to the Government that I would be prepared to support the amendment in lieu if there were a clear statement that genuine supporters in this category who provided significant funds but did not wish to control the litigation would be protected. In the absence of such a statement, I feel obliged to support the Motion of the noble Lord, Lord Pannick, to insist on the Lords amendments. The Commons will then have to consider whether it is prepared to incorporate the sort of principle that I have enunciated to protect the financing of group litigation and incorporate it into an amendment in lieu when it is sent back to this House.

My Lords, I had understood the Government’s proposed amendment as conferring power on the rule committee to determine what the rules should be. There is, of course, an ultimate power but I would expect the rules to be fixed by the rule committee, after appropriate consultation and with a fair amount of knowledge of how the whole system works. This kind of amendment would deal with the sort of problem that the noble Lord, Lord Adonis, and I referred to in Committee. The Government’s amendment would be a sensible one to make and the Minister has explained the principle under which it would work. I am perfectly happy to leave that to the rule committee to determine, in the light of its great experience and knowledge of the situation.

My Lords, I have listened, of course with enormous respect, to the noble and learned Lord who has just spoken but I do not agree with him. As my noble friend Lord Marks said a few moments ago, rules already exist to deal with the problems that are legitimately identified. What I want to say, in agreement with the noble Lord, Lord Pannick, and my noble friend Lord Marks, is about who the people are who sometimes contribute to group actions and would be chilled out of them as a result of the proposed changes.

I have to go back to my period as a Member of another place, representing a geographically large but population-small rural Welsh community. From time to time in that community, issues arose relating to judicial review. For example, many people wanted to challenge the closure of small primary schools or the changes made by the Conservative Government of the time to the structure under which primary schools could be governed. There were challenges to new roads and planning decisions, which had been made on faulty procedure by the local authority.

Who are the people who contribute to these group actions? They include people with small businesses who decide that the issue matters more to them than might at first sight be apparent. They do not, however, want to open up their private business to the courts—not because there is anything wrong with their private business, but because they think it might be made public and their neighbours might know that business. Some small farmers are much more affluent than their neighbours know; others quite the opposite. The affluent ones may want to make a disproportionate contribution to a group action, because it matters to them and because their families have been central to the community in which they live for several generations. Elderly people may not want to leave quite as much as their unworthy relatives would like to receive from their estates; they may feel that there are community issues that justify their descendants perhaps paying a small price by a contribution being made to a community group action of judicial review in the public interest.

Those are just three illustrations of the types of people who will feel that they are simply not prepared to give more than a few pounds to a group action, whereas in the past they may have given several thousand. So I agree with the point that has been made eloquently by others. Before we go down this road, we need some indication from the Government—they must have some idea—at least of the proportion of costs that would fall within these provisions. Until we have that, we could not conceivably be responsible in agreeing to a proposal that would have such a serious chilling effect, not only on judicial review but on the spirits of small communities such as the one I represented.

I am a complete outsider on this, but I am now confused. The examples that the noble Lord has given I can recall from my own experience, not of judicial review but of group activities—the community. The noble Lord, Lord Marks, however, said that he would buy 15% to 20%. Now, 15% is six or seven people. That is not a group or a community. Twenty per cent would be five people funding. I am now at a loss. I realise that the Government should put something forward about the level, but I am confused by the idea of lots of people contributing for the community. The noble Lord, Lord Marks, said, “I could buy 15% or 20%”. That is not a group and it is not a community. That is a small tightly knit group of motivated people. So I am confused about which way we are going on this debate.

The noble Lord, Lord Rooker, has, extremely uncharacteristically, if I may say so, missed the point. I am sure that it is my fault. We are talking about group actions that may involve a significant number of people—hundreds or thousands, maybe—to which a few individuals make a large contribution. They are making that contribution, often anonymously, to ensure that the matter is capable of going to judicial review for the reasons I gave earlier. We are not talking about 20% meaning that there are only five people involved in the action. We are talking about 20% of the funding that is collected, although there may be hundreds of people involved in the action.

My Lords, the noble Lord is quite right. In my experience—which I am sorry to say is rather larger than I would like—of local communities in mid-Wales fighting, for example, wind farms, a lot of households give a few pounds, but a judicial review becomes possible because one or two people who really do wish to remain anonymous give significantly more. Many of these people have been terrified by threats of being sued for costs. So I would implore the Minister to give as much clarity as possible on this point.

My Lords, I am moved to continue with Wales because I acted for my community—the Gresford community—when there was a proposal to opencast mine part of Gresford colliery at a time when there were about 260 bodies still buried in it as a result of the 1934 disaster. Your Lordships will appreciate how people felt about that: they felt that there had been a stitch-up between the National Coal Board and the local authority.

Since the matter had not been properly advertised, we took it to judicial review. We could not, however, expect every member of the community to be involved, so a committee of about eight people was set up to instruct solicitors and counsel to appear on this judicial review. It is those eight people I am thinking about, who might be found liable for costs. I can tell your Lordships that even then—back in the 1970s or maybe the early 1980s—costs were a considerable issue for these people before becoming involved in this matter. The result was that the judicial review was successful. The county council advertised properly and the villagers —the community—then made contributions to the consultation that took place. Although the decision to permit opencast mining went ahead, it was with very stringent conditions. The National Coal Board was very concerned to keep to those conditions, so the work was carried out strictly in accordance with them and the land was replaced to such a degree that it is now the training ground for Wrexham Football Club. Your Lordships will appreciate that in that case a decision was taken that excluded a community which had the highest sensitivities about what had happened. The fear of costs was something that might have deterred that successful action altogether.

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.

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.

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.

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.

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?

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.

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.

Motion D

Moved by

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

107: Clause 67, page 67, line 25, leave out subsections (2) to (6) and insert—

“( ) 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.”

Commons Disagreement and Amendments in lieu

The Commons disagree to Lords Amendment No. 107 and propose Amendments Nos. 107A, 107B, 107C, 107D and 107E in lieu.

107A: Clause 67, page 67, line 22, leave out subsection (1) and insert—

“(1) This section applies where—

(a) a person is granted permission to file evidence or make representations in judicial review proceedings, and(b) at that time, the person is not a relevant party to the proceedings.(1A) That person is referred to in this section as an “intervener”.”

107B: Clause 67, page 67, line 30, leave out subsection (4) and insert—

“(4) On an application to the High Court or the Court of Appeal by a relevant party to the proceedings, if the court is satisfied that a condition described in subsection (4A) is met in a stage of the proceedings that the court deals with, the court must order the intervener to pay any costs specified in the application that the court considers have been incurred by the relevant party as a result of the intervener’s involvement in that stage of the proceedings.

“(4A) Those conditions are that—

(a) the intervener has acted, in substance, as the sole or principal applicant, defendant, appellant or respondent;(b) the intervener’s evidence and representations, taken as a whole, have not been of significant assistance to the court;(c) a significant part of the intervener’s evidence and representations relates to matters that it is not necessary for the court to consider in order to resolve the issues that are the subject of the stage in the proceedings;(d) the intervener has behaved unreasonably.”

107C: Clause 67, page 67, line 44, at end insert—

“and the proceedings described in paragraphs (a) to (d) are “stages” of judicial review proceedings.”

107D: Clause 67, page 68, line 3, leave out from beginning to “directly” in line 6 and insert—

“(a) a person who is or has been an applicant or defendant in the proceedings described in subsection (7)(a), (b) or (c);(b) a person who is or has been an appellant or respondent in the proceedings described in subsection (7)(d);(c) any other person who is or has been”

107E: Clause 67, page 68, line 8, at end insert—

“( ) 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.”

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

Moved by

As an amendment to Motion D, leave out from “House” to end and insert “do insist on its Amendment 107 to which the Commons have disagreed and do disagree with the Commons in their Amendments 107A, 107B, 107C, 107D and 107E in lieu thereof”.

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.

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.

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.

Motion D agreed.