My Lords, I shall speak also to Amendment 165. Your Lordships now turn to Clause 73, which concerns the costs of interveners in judicial review proceedings. Your Lordships will know that often in judicial review cases the court allows a person or body to intervene because they have knowledge or experience which may assist it in resolving the legal issues. Clause 73 states that interveners may not receive their costs other than in exceptional circumstances, and it adds—this is my concern—that, unless there are exceptional circumstances, an intervener must pay any costs that have been incurred by a party as a result of that intervention.
I cannot understand why such a provision is necessary or appropriate. The current legal position is clear and fair: the court has discretion over whether to order a party to the judicial review to pay the intervener’s costs or whether to order the intervener to pay costs to a party. Clause 73 is manifestly unfair. It will create a strong presumption that the intervener must pay costs, even if the intervention is helpful to the court in raising points that assist it in arriving at its substantive judgment. The Minister may say that the intervener can resist paying costs on the basis that there are “exceptional circumstances”, but there is nothing exceptional about the intervener assisting the court: it happens every week in judicial review cases. In any event, if there is a statutory presumption, rebuttable only by showing exceptional circumstances, that the intervener must pay the costs, public interest bodies will be far less likely to intervene. The courts will be denied assistance from those public interest bodies, which will be greatly to the public detriment and greatly to the detriment of the legal system, whether the intervention is from Liberty, the GMC, the UN High Commissioner for Refugees or, indeed, the Home Secretary—because a number of interventions in judicial review cases are made by government departments. None of this makes any sense whatever.
Amendment 164 would provide that it is a matter for the discretion of the court whether to order costs to be paid by or to an intervener. I commend that amendment to the House. I beg to move.