My Lords, I rise with an appeal to my noble friend the Minister, whom I know to be a very good lawyer and a very sensible person, to accept the view being expressed around this Committee that this clause should not appear in the Bill.
I added my name to those intending to oppose the clause because I believe that, if there is one clause in the Bill that does grievous bodily harm to judicial review in this country, it is this one. Judicial review, as the noble Lord, Lord Pannick, said eloquently in his introduction—and as the noble Baroness, Lady Kennedy, illustrated, too—has over the years benefited from numerous interventions, sometimes from surprising sources. We are familiar with interventions by Liberty. When I was the independent reviewer of terrorism legislation, I disagreed strongly with some of those interventions, but I valued every single one because they enabled the issues of national security that were before the courts to be tested at all levels of judicial review and not merely in the House of Lords or the Supreme Court.
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The interveners in such cases are often repositories of excellence and expertise. Perhaps I may give the example of an organisation of which I used to be president, the Howard League for Penal Reform. In the Howard League there are, for example, experts in children’s justice who know more about that subject than probably most of the rest of the lawyers, even in this House, added together, and that expertise is given through interventions. They are not allowed to intervene because they feel like it. As the noble Lord, Lord Pannick, said, in order to intervene they have to have the permission of the court. That means that the
senior judiciary have decided that they will benefit from the knowledge of those interveners in reaching a balanced and fair decision. Surely we want to retain that without the chilling effect of this clause, which would make the trustees of NGOs extremely reluctant to allow funds to be risked in such interventions.
Furthermore, interventions are often made by written representation. They may be drafted by brilliant lawyers such as the noble Lord, Lord Pannick, and their effect may even be to bring arguments that have been presented by other litigants to an end, at great value to the public purse and a saving of court time. The inclusion of the word “must” in Clause 67(4) is what which in my judgment, for what it is worth, does grievous bodily harm to judicial review, as I said earlier.
I conclude by saying to the Minister that I do not believe that anybody who has been involved in any cases of this kind or has seen the judgments given in them believes that the current costs system is anything other than robust, fit for purpose and free from the necessity of this kind of change.