My Lords, we now come to Clause 65 and its sister clause, Clause 66. As introduced, Clause 65 would do no more than see a person provide financial information with their application for judicial review. This will prevent others from sheltering from their proper costs liability at, almost invariably, the expense of the taxpayer. As introduced, Clause 66 would do little more than require the court to consider that information.
The House’s amendments to Clause 65 would allow an applicant to be granted permission where they had not provided financial information with their application for permission, with nothing more said about the circumstances in which that would be appropriate. Similarly, the House’s amendments to Clause 66 would mean that, even where that information had been provided, the court need not consider it, nor consider whether a person identified should have costs awarded against them. Therefore, conceivably, a person might control a judicial review’s course while sheltering behind a shell company, precisely to avoid proper costs liability, and the judge could be given no information about that.
We think that those amendments, although undoubtedly well intentioned, simply go too far. The Government have, however, been persuaded to table an amendment, even after the other place so resoundingly supported the Government’s original clause, to give noble Lords additional reassurance that the Government do not intend Clause 65 to apply inappropriately or unhelpfully. I trust that the Government’s actions with regard to this clause, and the amendment itself, will give noble Lords the comfort they need to support the Government.
We have been clear throughout that we intend an approach which strikes a balance between the court having the information it might find helpful when deciding costs and avoiding providing it with too much information. The amendment provides comfort on that, by requiring any procedural rules which give effect to the clause to include a de minimis threshold.
When providing the court with information, an applicant would not have to identify any person who had provided contributions below that threshold.
I am sure that noble Lords will understand that we are not in a position to bind the hands of the procedural committees that will make the rules as to what the figure will be. That would be as inappropriate here as it would be with regard to any other procedural rule. I am comfortable that, whatever figure is ultimately adopted, it will ensure that the rules are not overly burdensome or require an excessive level of investigation. Quite simply, setting the threshold too low would result in flooding the courts with unhelpful paper that would not suit the Government’s purposes. I can happily confirm that the Government will, of course, take into account evidence and views appropriately as they come to a view on what figure is appropriate.
It is important to emphasise that nothing in Clause 65, which would make mandatory the provision of information on an application for permission, would require any level of financial resources to be available before permission can be granted. This is not about taking discretion away from the judges but about giving them the information to enable them to take fully informed decisions.
We have not tabled an amendment to Clause 66 as we are satisfied that it continues to strike an appropriate balance. The clause as the Government wish to see it would not require the courts to award costs against a person or a type of person. It simply does not affect the judge’s discretion as to costs, but it would place the court under a duty to consider the information that has been provided and whether persons identified in that information should face costs—something that they would inevitably do in any event. What decisions it takes having considered that information is a matter for the court.
For the sake of absolute clarity, I am happy to repeat that there is nothing obliging courts to make costs orders against a person identified in that information; we require only that the courts have the full picture. The alternative is to say that the judge should make an order with a less than full picture and with less than full transparency, and I am not convinced that that is desirable.
Perhaps I might make one further thing clear. These clauses and the amendment do not alter the court’s existing powers on costs. The common-law position would remain. More than mere funding will be required before a third party is made liable for costs; for example, those parties who are not only funding but are seeking to drive the litigation or to benefit from a potential remedy in the case might be ordered to pay costs. We are concerned that the courts have the wherewithal to identify who is driving litigation—that people cannot shelter behind matters—but, equally, small contributions to a fighting fund, where those individuals do not expect to control the litigation, should not bring with them an obligation to declare that you have put a modest sum into a fighting fund. Therefore, you would not inevitably be liable for costs. In fact, you would probably not be liable for costs anyway but you do not have to disclose that information.
I hope that the House will not insist on its Amendments 103 to 106 but will accept Amendments 106B and 106C in lieu. I beg to move.
Motion C1