My Lords, I am grateful to all noble Lords who have taken part in the debate on interveners. The position is that any person may apply to the court to give evidence or make representations in judicial review proceedings. However, we think it is right that people who intervene in judicial reviews should have a fairer financial stake in the case and do so in a way that does not cause the true parties to the judicial review additional costs.
Clause 73 aims to strengthen the costs rules in relation to third parties who voluntarily apply to join in judicial review cases as interveners. It does this by
establishing two presumptions: first, that the court will order an intervener to pay their own costs—that is normally the position now; secondly, that it will order an intervener to pay the reasonable costs that they cause a party to the judicial review to incur by their intervention. However, neither would apply where, in the view of the court, there are exceptional circumstances making it appropriate for that presumption to be rebutted. Neither presumption will apply when the court invites an intervention—and courts do quite often invite interventions. The clause will not affect the judge’s ability to invite whichever interventions, from whichever interveners, he or she sees fit.
The clause has been subject to significant debate and, as I said at Second Reading and in Committee in this place, and as my honourable friend Shailesh Vara said in the other place, the Government wanted to look again at how best to ensure that interveners consider carefully the costs implications of intervening, while not deterring appropriate interventions in appropriate cases, and, as a result, whether any changes to the clause were required. We have taken into account the views expressed in this House and the other place. The Government have listened to the concerns raised in Parliament and by stakeholders but consider that the current clause is right and are not persuaded that amendment is needed. The Government have considered and discussed the clause in some detail. I know that my ministerial colleagues have also discussed it with fellow Peers. I regret to say that we have been unable to agree an alternative formulation. The Government recognise that interveners can add value to a case and we do not want to stop that. However, interventions should be made in the right cases after careful consideration beforehand. That means that interveners should have a fair financial stake in the case.
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Let me answer two of the questions that emerged from our debate. Do the courts get help from interveners? Indeed, can they not provide valuable assistance in some cases? The answer to both questions is emphatically yes. I should declare an interest as having appeared as counsel in a number of cases in which there have been interveners; on one occasion, I have acted for an intervener. I do not think there is any doubt that the number of interventions has increased. Sir Henry Brooke, a former Court of Appeal judge with particular knowledge of the civil procedure rules, said in 2005:
“Since 2000”—
which was, incidentally, the date of the creation of the Administrative Court—
“there has been a noticeable increase in the number of interventions in judicial review and other proceedings in the Administrative Court, the Court of Appeal and the House of Lords”.
The main criterion for an intervention ought to be whether would-be interveners through their expertise are likely to be able to assist the court in understanding either the legal issues in question or the factual basis of the claim. Interventions should not be the routine response of a body generally interested in the area of law concerned or to use up an annual budget. Nor should interveners duplicate the arguments of a true party to a judicial review or simply act as a cheerleader for one party or another.
One problem that an intervention may cause is its scale. Permission may be granted on the basis of what the then judge thinks would be a modest intervention. What can follow is often a very lengthy skeleton argument and lever-arch files full of authorities. Both true parties to a judicial review are then put to the time and expense of trying to prepare a response. They cannot simply assume that the judge at the hearing—rarely the same judge who gave the permission—will simply cut off or limit the intervention; although many do their very best to do so.
Lord Hoffmann in E (A Child) v Chief Constable of the Royal Ulster Constabulary, 2009, AC 536, said:
“An intervention is however of no assistance if it merely repeats points which the appellant or respondent has already made. An intervener will have had sight of their printed cases and, if it has nothing to add, should not add anything. It is not the role of an intervener to be an additional counsel for one of the parties”.
As the noble and learned Lord, Lord Hope, correctly pointed out, we do not by the provisions purport to tell the Supreme Court how to organise its affairs, but I suggest that the point that Lord Hoffmann makes can find resonance across both the Court of Appeal and first-instance cases. Why should there be any difference between the Supreme Court and judges of the lower tier? Perhaps there is this distinction—apart, of course, from the great respect that the Government have for the Supreme Court and its ability to organise its hearings and what it decides to rely on. By definition, a case that has reached the Supreme Court has been acknowledged as one of great public importance. The same is not always the case in cases of first instance or at the Court of Appeal.
We need to control the costs of judicial review, which are sometimes caused by interventions. We make no apology for trying to encourage potential interveners to think carefully about whether they can truly add anything new. The Government have listened to concerns, including that the clause is too broad or means that an intervener could be asked to pay the costs of the losing side. However, we consider that the scope of the clause and the safeguards built into it present a sensible approach. The court will be asked to consider making a costs order against an intervener only on application by a party, not in each and every case where an intervener is involved. It may be that in suitable cases, the parties agree with the potential intervener that they will not apply for costs against it. Even if the parties make an application, the court will retain discretion not to order costs where it considers that there are exceptional circumstances that make it inappropriate to do so.
It is important also to emphasise that the judge will have discretion over both aspects: causation and quantum. That will ensure that the parties will continue to carry a costs risk, helping to ensure that they do not engage the most costly legal advice available to deal with points that do not truly merit that level of expertise.