My Lords, it might be convenient to consider this group and the following group as one. The noble Lord, Lord Marks, has addressed his amendments in that group. I strongly support the amendments tabled by the noble Lords, Lord Pannick and Lord Marks, to which I have added my name, together with the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Carlile. I speak therefore briefly to the amendments in my name. Amendment 75 is particularly important in that it addresses the problems facing applicants for permission in the absence of legal aid for that stage. Amendment 75A provides that the court may make an order at any stage of the proceedings, in connection with Clause 68(3) and Amendment 75B would extend this potential protection to interveners whose position we have debated in a somewhat different context earlier today. Amendment 75E removes the reference to the court’s considering information of a financial nature if such is only “likely to be available”—a phrase that we have already debated —in respect of Clause 68(5).
Without the protection of the amendments in the group, not least from the Government’s proposals about a public interest test, which the Lord Chancellor conveniently empowered to define the terms of such a test, the protection offered to parties by this clause would be diluted to homeopathic proportions.
In the next group, Amendment 80B would apply to Clause 69(2) and provide that a costs capping order limiting or removing the liability of the applicant to pay another party’s costs where an order is not granted should “normally” rather than mandatorily limit or remove the other party’s liability to pay the applicant’s costs if that is the case. That introduces an element of reciprocity. Amendment 80C alternatively would allow discretion by substituting “may” for “must” in the subsection; again the issue of judicial discretion raises its head.
We have heard powerful speeches from non-lawyers—the noble Baroness, Lady Campbell, and my noble friends Lady Lister and Lord Davies—and, if I may say so, a magisterial rebuke to the Government from the noble and learned Lord, Lord Woolf; that was not for the purposes of delivering an admonition but to persuade them of the error of their ways, which I hope the noble Lord, Lord Faulks, will convey to the Lord Chancellor with some effect. These provisions thoroughly dilute what ought to be a sensible measure to protect claimants in this particularly important area of jurisdiction.