My Lords, I support these amendments. First, I declare an interest as the honorary president and a former director of the Child Poverty Action Group. It is an organisation which helped to pioneer the use of judicial review for the marginalised citizens about whom we heard in debating the previous amendment, thus emphasising that we are talking about not just the interests of lawyers but the interests of some of the most deprived, marginalised citizens of our country. I speak also as a member of the Joint Committee on Human Rights. I remind your Lordships’ House that in the first of our two reports on our grave concern about the human rights implications of these changes, we said:
“We therefore do not consider the Government to have demonstrated by clear evidence that … judicial review has ‘expanded massively’ in recent years as the Lord Chancellor claims, that there are real abuses of the process taking place, or that the current powers of the courts to deal with such abuse are inadequate”,
notwithstanding what the noble Lord, Lord Horam, said with regard to the previous amendment. I have reread our debates on this issue and I have read all the briefing that we have received. I can only come to the conclusion that the provisions in Part 4 are a series of highly imperfect solutions looking for a problem—a problem that no one else can see.
As regards Amendment 157, in Committee I raised the concerns of NGOs. I said that they warn of,
“the chilling or deterrent effect of these clauses, which appear to mean that people who are not directly party to the proceedings but who have supported an applicant could be held liable for costs”.—[Official Report, 30/7/14; col. 1601.]
Michael Spencer, solicitor for the Child Poverty Action Group, said:
“If individuals or groups fundraise or seek donations to help bring their case, the financial clauses of the Bill will put their donors and funders at risk too”.
The Minister responded quite fully to my concerns and fears. He said that,
“we do not believe that the provisions would affect the common law position concerning when costs would be awarded against a party … These clauses should not cause anyone to pay costs who would not do so under the current law, except those who should but of whom the court is unaware. I hope that will allay, to some extent, the fears that some have about making challenges to a school or some other small project, which they might reasonably hope would be the subject of a judicial review”.—[Official Report, 30/7/14; col. 1612.]
However, I fear that the concerns and worries of groups outside this House have not been allayed. As the most recent briefing from this very wide group of NGOs, which represents a wide range of lawyer and non-lawyer interests in this area, still raises concerns, I discussed with Justice why it was still worried about this, despite the reassuring words that the noble Lord gave us in Committee. Justice said:
“While the Minister’s assurance is welcome, as the Minister explains, he cannot predict how the courts will respond to the change in position proposed by the statute. Similarly, Parliament cannot have a full picture of the rules which the court will be applying, as the Bill provides for the detail of the change to be in the rules to be set down by the rules committee. Yet, there is nothing in the Bill which would send a message to the courts that they should not depart from their previous approach to the allocation of costs. If the Government doesn’t intend to change the position in the common law, the question is: ‘Why not make that clear on the face of the Bill?’. Instead, by leaving the
ambiguity in place, and creating a clean statutory slate of instructions for the courts, Ministers are creating a real risk that individuals will be deterred from litigating while the costs risk is ascertained. As and until the position is clear, individual solicitors will be unable to advise their clients on the likely costs risk, if any. Caution will be required. The breadth of the disclosure requirement in Clause 71 makes this chilling and deterrent effect particularly dangerous”.
I will not go on but there is a real danger here that I hope we in this House will prevent happening.