My Lords, I also wish to speak—[Interruption.]. Sorry, I did not intend to knock over the microphone. Let me begin again.
My Lords, I support all the amendments in this group, in particular Amendments 75 to 77 and Amendment 81, in the name of my noble friend Lord Pannick, and I oppose the Question that Clause 68 stand part of the Bill.
The proposals are yet another barrier to access to justice. While we are talking about barriers to access to justice and people’s access to advocacy, I hope that the Minister will humour me—unfortunately, I have not yet figured out a way to intervene when he is speaking, apart from waving my arms about—and allow me to come back to him on the subject of the importance of cases and of intervening in such cases. Cases are often not all about winning or losing; they are about what we all gain from the proceedings. Yes, Leslie Burke lost on appeal, but his was the first case that prompted the GMC to change the guidelines on issues of life and death, and to begin to change the nature of the involvement of patients in their treatment. So we gained from that case, even though it was lost on appeal. That shows us how important access to justice is—not necessarily just for the particular case, but for what it offers us all in society.
The Government’s proposals on costs capping are deeply worrying in two respects. As I understand it, under Clause 68 the court can make an order only if the claimant already has permission to ask for judicial review. This will have a dramatic effect on access to justice. At present, an order can be made before the claimant asks for permission, so the claimant knows from the outset how much they will be liable for. This is vital, because most of the work is done in the early stages before the permission hearing. The Government
themselves have said their costs can amount to £30,000. Without the protection of an order, most charities will simply not be able to seek permission. The risk is too great.
The clause defines “public interest proceedings” and sets out the matters the court must consider in deciding that question. But the Lord Chancellor can change those matters by regulations. That cannot be right. In effect, the Lord Chancellor is surely then able to dictate to the court what is in the public interest—when it is the Government who are most likely to be the target of such proceedings.
These proposals have to be seen in the context of the whole package of increasingly worrying legal reforms. As legal aid is withdrawn in cases of significant public interest, costs capping becomes even more important. In a recent case that I know of, a disabled and destitute man from Nigeria, who had been living on the streets, was denied legal aid and was able to get his case brought before the courts only because he got a protective costs order. If costs capping is severely restricted, what chance will individuals have of holding public bodies to account? I am mystified. This is yet another barrier in the way of ordinary people getting access to justice at every level—and it is the marginalised who will be most affected.
Both the Joint Committee on Human Rights and the Constitution Committee of this House have expressed concerns about these proposals. Their effect will be to drive away all but the wealthiest of claimants. The one route available for righting wrongs will be eroded for those who most need it. I do not feel that we can allow this to happen.
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