I oppose Clause 68 standing part of the Bill. The Joint Committee on Human Rights welcomed many aspects of the Government’s original proposals on cost capping, as have others. However, as the noble Baroness, Lady Campbell of Surbiton, pointed out, we are very concerned about Clause 68. We said that it has the potential to limit very severely the practical effects of PCOs in protecting access to justice. We quoted in our report the supplementary written evidence given to us by the Bingham Centre for the Rule of Law, which stated:
“A PCO that cannot be obtained until it is too late to prevent the chilling effect of uncertain and unlimited costs exposure is a pointless PCO: it does not achieve the aim of enabling access to justice for those who cannot expose themselves to substantial costs risk”.
In essence, that is very much the argument put forward by the noble Lord, Lord Pannick. Therefore, in the JCHR’s view, Clause 68 is too great a restriction and will undermine effective access to justice.
The committee also shares the concerns of others that both Clauses 68 and 69 give the Lord Chancellor unreasonable Henry VIII powers. We noted that the Government have not explained the necessity for giving the Lord Chancellor “such an extensive power”, and one which has serious implications for the separation of powers between the Executive and the judiciary. Therefore, we recommended that those powers be removed from the Bill.
It is worth noting the JCHR’s wider observation that the judicial review proposals as a whole,
“expose the conflict inherent in the combined roles of the Lord Chancellor and Secretary of State for Justice”.
We warned that the kind of politically partisan arguments put forward by the Lord Chancellor in support of these proposals—for example, in the Daily Mail of 6 September 2013, which I think was referred to in earlier debates—
“do not qualify as a legitimate aim recognised by human rights law as capable of justifying restrictions on access to justice, nor are they easy to reconcile with the Lord Chancellor’s statutory duties in relation to the rule of law”.
I am well aware that it was my own Government—a Labour Government—who combined these two roles, but such a politically partisan approach has led the JCHR to suggest that the time is approaching for there to be a thoroughgoing review of the effect of combining in one person the roles of Lord Chancellor and Secretary of State for Justice. Personally, I think that Part 4 of the Bill means that that time has now come.