Skip to main content

Judicial Review and Courts Bill

Volume 820: debated on Wednesday 6 April 2022

Third Reading

Clause 49: Payments in respect of pro bono representation


Moved by

Clause 49, page 60, line 8, leave out “passed without” and insert “the Bill for which would not require”

Member’s explanatory statement

This amendment adjusts terminology relating to devolution in Northern Ireland.

My Lords, there is one minor and technical amendment in my name to Clause 49, which inserts a new clause to allow pro bono cost orders in tribunals. Specifically, the amendment is to the wording of the devolution carve-out, which ensures the clause applies only to tribunal proceedings that are reserved in Scotland and Northern Ireland. I have made this amendment following discussions between the Office of the Parliamentary Counsel and its equivalent in Northern Ireland, as the Northern Ireland equivalent felt the new words more accurately reflected the wording of its devolution settlement. However, the amendment has no impact on either the policy of the clause or how the clause will work in practice. I beg to move the amendment in my name.

I wonder why this was not picked up earlier. Does it reflect within Whitehall a lack of understanding of devolution and its impact yet again?

My Lords, no; it reflects the extremely high standards of parliamentary counsel. If we had not picked this up, nobody else would have done, but we felt it was the right thing to do.

Amendment agreed.


Moved by

My Lords, I will speak very briefly on this issue. I want to say two things. The first is to express our gratitude to the Minister and the Bill team. The Minister has given all of us a great deal of time, both before Committee and on Report, and that has been used very successfully. I would also like to express my thanks to Opposition and Cross-Bench Peers, particularly those with legal and judicial experience, who have done a great deal of work in improving this Bill. The Bill team also has given us all a great deal of help.

The second point I want to make is that we have made a number of changes to this Bill after really serious consideration in Committee, on Report and following Second Reading. It would be nice to think that, when this Bill now goes back to the Commons, those changes will get some serious consideration, rather than simply being returned to this House after cursory consideration. They are important. We have deployed a great deal of expertise, knowledge and effort in making those changes, and they deserve a proper look from the other place. That said, I give my grateful thanks to everyone.

My Lords, I echo the thanks of the noble Lord, Lord Marks. I also thank the Minister and his team for their support and the numerous meetings we have had as the Bill has progressed. I would also like to thank the outside organisations that I have found particularly helpful; I mention the Public Law Project, Justice, Inquest, Fair Trials, Transform Justice, Liberty and Amnesty International—I found their support extremely helpful. I would also like to personally thank Catherine Johnson, who has been of great assistance to me as this Bill has passed through this House.

I reinforce the point made by the noble Lord, Lord Marks, about the importance of the amendments we have passed. We have had a different approach from that taken in some other Bills. We have had only a small handful of amendments that have passed for the House of Commons to consider. They have been Cross Bench-led by extremely senior judges and they deserve serious consideration by the other House.

My Lords, I am conscious that the House has a lot of business before it today, but I will take just a few moments to say a few words to mark the end of the passage of the Bill through this House. Over the last few months, we have had some spirited discussions on our Courts & Tribunals Service and the relationship between the judiciary and Parliament. I am grateful to all noble Lords for their scrutiny of this Bill.

Of course, I was disappointed that the House voted, albeit narrowly, to remove the power for prospective-only quashing orders on Report. I will reflect further on the House’s decision on Report to remove the presumption in favour of using the new remedies from Clause 1. We had detailed debates over the merits or otherwise of the presumption. I can assure the House that I have heard and listened carefully to the arguments made to me both inside and outside the Chamber.

We must also resolve the position on Clause 2 and the Cart ouster clause. I said on Report that I think Cart was a legal misstep; noble and learned Lords who sat on that case acknowledged that too during our proceedings. Along with the new clause proposed by the noble Baroness, Lady Chapman, on legal representation in coroners’ inquests, it will now be for the other place to consider these amendments. No doubt we will convene again to debate those measures in further detail.

Having touched on the points on which we disagreed, there were of course many areas where there was unanimity. I am grateful to noble Lords for supporting government amendments to enable coroners to provide registrars with additional information to help ensure deaths do not go unregistered and to extend the remit of the Online Procedure Rule Committee to pre-action conduct of prospective parties to litigation. During Committee, the noble and learned Lord, Lord Etherton, stressed the need for co-ordination between that committee and the existing rule committees. I agree; there will need to be a joined-up approach to rule-making between those various committees. As a matter of statutory process, that will be facilitated by the requirement for the Online Procedure Rule Committee to consult before making rules.

Having just mentioned the noble and learned Lord, I take this opportunity to thank him for raising the important issue of pro bono costs orders in tribunals. I am very pleased that we were able to agree an amendment on this important issue, again on a unanimous basis.

I echo what was said by the noble Lords, Lord Marks of Henley-on-Thames and Lord Ponsonby of Shulbrede. I thank all noble Lords who contributed. If I may respectfully say, the debates on this Bill really showcased the depth of experience across the House on these issues. I particularly thank again the noble Lord, Lord Faulks. I am not sure whether it is in order for me to spot him if he is outside the confines of the formal part of the Chamber but none the less, I thank him. He chaired the Independent Review of Administrative Law. That work was indispensable to the process and has informed our measures in the Bill. I also pay particular tribute to and thank the noble Lords, Lord Anderson of Ipswich and Lord Pannick, and the noble and learned Lords, Lord Hope, Lord Brown of Eaton-under-Heywood, Lord Etherton and Lord Thomas of Cwmgiedd, for their valuable insight on the judicial review clauses.

I also thank Members of the Opposition Benches for their extremely constructive engagement with me on this Bill. I thank the noble Lord, Lord Ponsonby of Shulbrede, whose experience in the magistrates’ courts certainly enriched our scrutiny of the criminal court measures, and the noble Lord, Lord Marks of Henley-on-Thames, for his various contributions and courteous engagement with me and my team throughout. I also thank the noble and learned Lord, Lord Judge, for his insightful questions throughout the passage of the Bill and for allowing me and my team to come to speak to him and his colleagues on the Cross Benches during the Bill and prior to Report.

I thank the noble Baronesses, Lady Chapman, Lady Chakrabarti and Lady Jones of Moulsecoomb, the right reverend Prelate the Bishop of St Albans and the noble Lord, Lord Beith, for their amendments to the Bill. I am also grateful to the noble Lord, Lord Thomas of Gresford, for meeting me to discuss his amendment on coroners’ inquests. We all ultimately want the same thing: a more efficient courts and tribunals system that continues to cater for everyone in our society, including those who are vulnerable or digitally excluded.

I am conscious that there will be many others who I have not named. I hope I have not left out anybody who should have been mentioned and apologise if I have, but perhaps I may take another few seconds to thank the Bill team by name. They really went above and beyond to help not only me but those on other Benches during the passage of the Bill. I thank Georgina Treacy, Paul Norris, Chris Bowring and Julie Clouder, as well as Paul Young from my private office. Their assistance has been invaluable. Without further delay to other proceedings, I beg to move that the Bill do now pass.

Bill passed and returned to the Commons with amendments.