My Lords, the amendments in this group essentially stem from the third report of the Delegated Powers and Regulatory Reform Committee, published on 11 July. They deal with the Bill’s provisions in relation to the requirements on applicants for judicial review to disclose information about their financial resources or, critically, those of third parties—that is to say, someone who, under Clause 66(3), is identified by such information as,
“providing financial support for the purposes of the proceedings or”—
and in my submission, this is deeply worrying—
“likely or able to do so”.
In its report, which dealt with a number of other parts of the Bill, the committee looked in particular at the question of information about resources contained in Clauses 65, 66 and 68. It stated:
“Clause 66(2) provides that the High Court, the Upper Tribunal or the Court of Appeal must, when determining costs … have regard to information specified in subsection (2)”.
The committee also states:
“Subsection (3) also requires the court to consider whether to order costs to be paid by a person who is not a party to the proceedings but who is identified in such information as someone who is (or who is likely, or is able) to provide financial support”.
The information about financing the proceedings will be provided in accordance with the existing legislation applying to the courts and the tribunals.
The committee goes on to say that the Senior Courts Act 1981 would be amended by Clause 65(1),
“to require an applicant to a court for leave to apply for judicial review to provide any information … as is specified in rules of court”.
That may include information of the kind mentioned in the subsection to which I referred—and, indeed, other subsections. Clause 65 goes on to specify that that also includes information about resources likely to be available to an applicant, which is understandable, and then deals with the position of body corporates and their members.
Of course, tribunal procedural rules are made under the Civil Procedure Act. They are made not by Ministers but by the rules committee. The problem with that is that they must be allowed by the Lord Chancellor and then are subject to parliamentary scrutiny by way of the negative procedure. Conventionally, it sounds as if the negative procedure would apply and we in this House are accustomed—perhaps too accustomed—to dealing with matters by way of the negative procedure.
Even assuming that that was satisfactory, it is not as simple as that, and I would argue that in a matter affecting judicial review, we should in any event be looking to the affirmative procedure and not the negative procedure. But even the negative procedure as laid down is not quite as open to the influence of the rules committee as one might think. The 1997 Act enables the Lord Chancellor to give notice to the rules committee that,
“he thinks it expedient for the rules to include provision that would achieve a purpose specified in the notice”.
Section 3A(2), the following subsection of the 1997 Act, states:
“The Committee must make such Rules as it considers necessary to achieve the specified purpose”.
In other words, the Lord Chancellor’s purpose has to be implemented by the rules committee. We are in a position where, ultimately, to use a commonplace metaphor, the shots are all the Lord Chancellor’s. He calls the shots via the rules committee. Therefore, there is no independent role for the rules committee. A negative procedure puts enormous powers in the hands of the Lord Chancellor.
I hope that later we will discuss the details of Clauses 65 to 68 and the potential difficulties that they occasion. Essentially, the point of these amendments is to look at the procedure which would be involved. The issue is one of effective parliamentary oversight over the group of tendentious changes that the Bill proposes in terms of JR. The Delegated Powers Committee declared that it found it,
“inappropriate that the nature of the information to be required under … the Senior Courts Act 1981 and … the Tribunals, Courts and Enforcement Act 2007, and under clauses 66”,
which we touched on with this amendment, “and 68(4)”, to which we will come later,
“is to be specified in rules of court subject only to the negative procedure. We consider that, in so far as such information cannot be specified in the Bill itself, it should be specified in a statutory instrument subject to the affirmative procedure”.
I hope that the Minister will give us satisfaction on that account because the proposals we will discuss are very far reaching.
6.45 pm
The notion that an applicant would have to disclose who is supporting an application has far-reaching implications, particularly with the use of the phrase “likely to support”—presumably in a financial way. How that could be judged at the outset strikes me as extremely difficult. What does it mean for any member of the kind of organisations to which I referred earlier—that large group of left-wing voluntary organisations—that might be thought to be backing judicial review in the eyes of the Lord Chancellor, if not the Minister? How might they be affected?
I suspect that most Members of your Lordships’ House are involved with a wide range of voluntary organisations. I declare my interests in the register: I am president of Age UK in Newcastle. I belong to many other organisations and I am sure that many of your Lordships are in exactly the same position. Are our means to be taken into account in the event that there is a challenge by one of those highly reputable organisations to a governmental decision? That would appear to be the thrust of the Bill’s proposals in that respect. Or are family members implicitly thought to be supporting an application by another family member? Are their means, potentially, to be taken into account? Ultimately, an order might be made against them. These serious questions remain to be answered. We may not have too much of an answer at this stage but we will need answers when we move on to consideration of those clauses.
There is a point in some of the concerns expressed about corporate involvement. The Lord Chancellor—for once, I almost do not blame him for something—has taken exception to the way in which the Richard III case was mounted. I have to declare an historical interest because at one time I was a member of the Richard III Society and I am very interested in Richard III. Although I was born in Leicester, I very much regret the decision that he should be interred there rather than in York, but that is another matter.
However, what appeared in that case was a bit of sleight of hand. In any event, I thought that the application was ludicrous, although I sympathised with its objectives. It appeared that a shell company effectively was set up with no assets. I can see some merit in looking at that kind of situation, but that is well beyond the normal run of cases which would be caught by the clauses that we will subsequently consider, and by the procedure outlined in Clause 65.
I hope that the Minister can give us some assurances about this. It is a matter of great concern substantively and procedurally to organisations outside. Even though, as I have pointed out, a very small minority of cases of judicial review are brought by such organisations, they tend to be matters of great public significance. To use a phrase which is becoming a bit of a cliché, there is a real danger of the chilling effect. It would be more chilling if the whole process was to be effected through secondary legislation at the behest of any Lord Chancellor on the basis that the rules committee has no option but to implement the Lord Chancellor’s wishes, which would be subject to the negative procedure, which, as we all know, is pretty nominal in both Houses—especially in the other place but frankly also here.
There is ample scope for the Government to react in a constructive way to the concerns of the committee. I hope that the Minister will give us some assurances in that respect, otherwise we certainly will have to return to that matter on Report, as we may have to after we have discussed further Clauses 66 to 68. I beg to move.