My Lords, as I indicated, Motion B and Motion C will be debated together for the convenience of the House.
These clauses have been the centre of much highly intelligent debate in this House. I am grateful for the scrutiny and valuable insight that noble Lords have given to the Bill, though I firmly hope that today will mark the end of that process for this particular Bill. Our amendments draw on those debates and the many other discussions that have taken place in less formal settings. The general arguments around these clauses are well rehearsed, and I do not intend to detain your Lordships unnecessarily by going over old ground. Instead, I will focus on the Government’s specific amendments, turning first to Clause 64.
Our ambition for this clause is relatively modest: it is simply to limit the time and resources spent on judicial reviews brought on grounds highly unlikely to make a substantial difference to the outcome for the applicant. However, we accept that there have been and are concerns that, exceptionally, even these types of case could engage crucial issues which should be heard by the courts. That is why we have tabled an amendment that permits the court to grant permission or a remedy where it considers that reasons of exceptional public interest mean that that is appropriate.
I accept that “exceptional public interest” is an unusual formulation, and I will limit myself to two observations on this that, I trust, will give noble Lords the comfort they might require as to how it will operate. First, a high degree of public interest specific to the case is required for the exception to be met. We think that that is a fair compromise in the light of my second observation: we have purposely not defined the term “exceptional public interest”, meaning that the judiciary will apply the term in practice to the facts at hand. For fear of appearing to seek to fetter that discretion, I will forbear from setting out further detail on how the Government would wish to see the term applied in future.
I simply add this: in one regard it could be said that it is always in the public interest for a government body, local authority or anybody amenable to judicial review to follow to the letter the law. One can see the force of that argument.
However, that, in a sense, is what public law is all about. It could also be said that simply saying that something is in the public interest is almost tautologous, when we are dealing with a public law remedy. Hence the requirement that there must be “exceptional public interest”—although, as I have said, we think that is a matter for the judges to decide. It will also be for the judges to decide first whether, on the facts of the case, the “highly likely” threshold has been met, and secondly, in appropriate cases, whether there are reasons of “exceptional public interest” which none the less make it appropriate to grant permission or a remedy .
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In the Government’s view, the clause does not put judges into decision-makers’ shoes, any more than the existing common law test of “inevitability” does. Both require a judge to have an appreciation of the relationship between the purported breach and the outcome, and I am confident that the clause would not cause judges to consider issues inappropriate to the role that they perform. The Government therefore believe that the clause and the amendments in lieu strike the correct balance between according the judiciary appropriate discretion for exceptional cases and conferring a duty to refuse permission or remedies where it is right to do so.
I come now to the final outstanding issue, which concerns the provision of financial information on an application for permission for judicial review. Our intention with this clause is to ensure that those who fund and control judicial reviews do not avoid the appropriate costs liability arising from their actions. Few can argue with that, and we believe we have brought forward proportionate and sensible provisions to meet that aim.
Again, we have listened to concerns raised about this provision, particularly on the potential for a chilling effect on small contributors. In our previous debate we tabled an amendment requiring that the court and tribunal procedure rules that implement the clause include a minimum threshold for contributions, so that those who contribute an amount below that threshold need not be identified in the information provided to the court. However, on the day of the debate I was unable to give noble Lords the comfort they required over where and how the threshold would be set. To summarise: the reasonable point was made that there is a world of difference between a threshold set at, say, £50 and one set at £1,000 or at some higher level. I still believe it would be inappropriate to decide on a figure without due consideration.
That is why we have taken the somewhat unusual step of tabling the same amendment as we did in December. But today I can give the House much more comfort as to how we will approach setting the threshold. As the Lord Chancellor did in the other place, I can commit to a public consultation, which we will approach with a suggested figure of £1,500 in mind. We are also
minded additionally to test a figure of 5% of the available funds. In the Government’s present view, this approach will ensure that the protection desired for smaller contributors will be provided without allowing those with a larger financial stake and who control litigation to avoid their due level of risk. Additionally, I am happy to make clear that this approach has the virtue of not excluding the procedure rule committees, who will ultimately decide the level of the threshold when making the rules.
I would also like to take the opportunity to clarify a further matter. This is the question of whether the clauses would force a judge to refuse permission to an otherwise meritorious judicial review for reason of lack of funds. I am happy to reassure the House that the clauses emphatically do not do that. The clauses contain no requirement for an applicant to have a certain level of funding. Similarly, the clauses do not change the law governing the circumstances in which it will be appropriate for judges to make costs awards. That remains a matter for judicial discretion, as it always has been.
I hope that I have dispelled many of the concerns regarding these reforms, and reassured your Lordships that these provisions are a sensible and proportionate means of dealing with a mischief that we intend to tackle, without undermining the discretion that should properly rest with judges. I therefore ask the House to support the government amendments.