My Lords, I was hesitant to add to this debate by yet another intervention, but perhaps I may draw attention particularly to subsection (6), which says:
“In determining whether there are exceptional circumstances that are relevant for the purposes of subsection (3) or (5), the court must have regard to criteria specified in rules of court”.
I would like the Minister’s help as to what matters can properly be said to be criteria, as opposed to matters that are not. Exceptional circumstances would not normally, for example, provide any protection—this is the important point—to the position of the charitable organisations which, at the present time, intervene.
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Anyone who attended the hearing held just prior to the debate starting, at which a number of charitable organisations expressed their concern about this—of which the noble Baronesses, Lady Lister and Lady Kennedy, are well aware—would have seen the fear in those organisations about the consequences of this clause. Can the Minister say whether it is anticipated that the provision in subsection (5) would provide any comfort to them?
The Minister is of course well aware, although lay people may not be, that the position with regard to judicial review again differs here from that for ordinary proceedings. In the latter, the only persons who are bound by the decision are the claimant and the defendant to the proceedings; with judicial review, you are in public law proceedings, which are of general application. When matters arise during the proceedings that the parties may not in any way be interested in, the only way that the court can be properly apprised of those matters is through an intervener.
I can go further and say that there have been cases before the courts on judicial review applications where both parties had reasons not to draw the court’s attention to how third parties might be affected by their argument. That is why, in certain proceedings—as my noble friend Lord Pannick pointed out in his very appropriate submissions—the Crown has to intervene to ensure that the matter is explored by the court. If the court was unaware of the dimension that I have just referred to, it might make a decision in the course of its judgment that would be quite contrary to the decision it would have come to had there been an intervention. I hope the Minister can try to assist noble Lords on that matter.