Criminal Justice and Courts Bill

Public Bill Committee, 27 March 2014.

Schedule 7 - Juries at inquests

Shailesh Vara (Conservative, North West Cambridgeshire)

I beg to move amendment 79, in schedule 7, page 93, line 34, leave out ‘General’ and insert ‘General’s Office’.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss Government amendment 83.

Shailesh Vara (Conservative, North West Cambridgeshire)

The amendments make minor changes to the provision in schedule 7 on the disclosure of jury deliberations following an inquest. The Bill allows a juror to make disclosure of jury deliberations in an inquest, where that juror felt that an offence, a contempt or other irregularity may have occurred. Where that disclosure is made to the Attorney-General, the Attorney-General may pass that information on to certain listed bodies, such as the police or the Crown Prosecution Service, to ensure that the matter is investigated properly. The amendments make it clear that when the Attorney-General passes on such information for the purposes of an investigation into whether an irregularity has occurred in the jury room, the Attorney-General does not have to do so personally, but rather a member of his office, such as a lawyer working on the case, can contact the police or CPS to pass on the information. It is therefore a minor change, designed to ensure effective operation of the legislation in practice.

Schedule 8 - Members of the Court Martial

Clause 48 - Supplementary provision

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following: New clause 24—Information and education for jurors —

‘(1) The Ministry of Justice shall develop a public education programme on the role and responsibilities of jurors, to include provisions set out in this Act.

(2) The judicial college and HMCTS shall provide information to jurors about their obligations during jury service, to include offences under this Act.

(3) Jurors, on the first day of jury service, shall sign a declaration to say—

(a) they must not undertake their own research;

(b) they must base their verdict only on the evidence presented at court; and

(c) they must not seek or disclose information about any case they try.’.

Andrew Slaughter (Labour, Hammersmith)

Good morning, Sir Roger. It is a pleasure to be here again under your chairmanship. New clause 24 effectively follows from our discussions about clauses 42 to 48 and the part of the Bill that deals with juror conduct. It dovetails nicely with the previous debate on the subject, which was on academic research. Having broadly agreed with the Government, in so far as the Government agreed with the Law Commission, on adopting the Law Commission’s recommendations on new offences for jurors, I venture to suggest that in regulating jury behaviour, it might be better to know what that behaviour is, but there are impediments to that due to restrictions on academic research. I am genuinely sorry that the Government did not agree with us, although I was grateful for the Minister’s indication that he would look again at prohibited conduct under clause 44.

One final piece of the jigsaw puzzle is that if we expect not only more of jurors, but make specific requirements of jurors in terms of their rights and responsibilities, it is only right that they know what those rights and responsibilities are. The new clause suggests that that be achieved through a combination of long, medium and short-term means, to ensure that there is no doubt that jurors know exactly what is going on. What evidence there is from the research that has been possible, such as that done by Professor Thomas, shows that jurors are, to a greater or lesser degree, infringing what will now be some of the new offences and unsure about what their duties should be.

The new clause says first that there shall be more general education of prospective jurors, which is most of the population, and that that should lie with the Ministry of Justice. If that suggestion is taken up and is that broad, the Minister may want in due course to pass that on to the Department for Education, but that would not be within the Bill’s remit. Secondly, there should be clear ways by which jurors are provided with the information they need to know, such as the form and the timing. Thirdly, they should then have to acknowledge, by signing a declaration, that they understand the principal points: they must not undertake their own research; they must base their verdict on only the evidence presented; and they must not seek to disclose information about any case they try, subject to the exceptions set out.

Those are not my original thoughts; they are based heavily on the Law Commission’s recommendations in its useful report. The timing of our Committee proceedings is slightly unfortunate, as yesterday the commission published a second report, which would have had a bearing on clauses 37 and 38. It is a shame that we did not have the benefit of that when we discussed those clauses on Tuesday; no doubt its comments can be taken on board in another place. However, we have full recommendations in response to the Law Commission’s consultation that broadly agree with the points I just made. Essentially, the balance being struck is between protecting the confidentiality and sanctity of the jury room and not mystifying it or making the process so hidden from scrutiny that the measures are self-defeating.

In that respect, the Law Commission recommends that

“the Department for Education should look at ways to encourage schools to deliver teaching about the role and importance of jury service.”

Secondly,

“the Judicial College and HMCTS should implement measures to improve information provided to jurors about their obligations during jury service including awareness of the new offence we recommend.”

There has been debate in the judiciary about whether that information should be provided in writing or orally and whether it should be given by the presiding judge to all jurors in a particular court centre. We can leave those matters to the people who know best about that: the judiciary. Thirdly, it recommends that

“consideration be given to jurors having to sign a written declaration on their first day of jury service, after they have received a warning not to conduct their own research”.

That is followed by recommendations regarding the current wording of the oath and how information should be provided.

I will not say any more as I think the new clause is clear. The recommendations, which are sensible, are not my own, but based soundly on the Law Commission’s research and professional opinions. I hope that the Minister will accept them.

Shailesh Vara (Conservative, North West Cambridgeshire)

I am grateful to the hon. Gentleman for his comments. The new clause would impose statutory requirements on the Ministry of Justice, the Judicial College, Her Majesty’s Courts and Tribunals Service and jurors in connection with jury service. The requirements are similar to some recommendations in the Law Commission’s report on contempt published last December.

The Law Commission made recommendations designed to discourage and deal with juror misconduct. Some of them require primary legislation, either because they involve creating criminal offences or because they confer powers to search for and confiscate internet-enabled devices, and the Bill gives effect to them in clauses 40 to 45. The other recommendations could be implemented administratively.

We agree that it is important to prevent juror misconduct and we continue to look at ways of doing that. In parallel with the legislative measures in the Bill, we will be looking at guidance and procedures.

Julian Huppert (Liberal Democrat, Cambridge)

Will the Minister, when looking at some of those procedures, have a look at the evidence that has been submitted by my constituent, Richard Taylor, who makes a number of suggestions, based on his experience, as to how the matter could be addressed. Will the Minister at least have a look at the submission that was sent to the Committee? I do not expect a detailed response now.

Shailesh Vara (Conservative, North West Cambridgeshire)

I will be happy to do so.

Much is already done to ensure that jurors understand their responsibilities. All jurors are shown a video about the role of the juror. It emphasises the importance of considering only the evidence adduced in court, not disclosing information about the case and not carrying out personal research on the case. It is made clear that if they do that, they could be held in contempt of court.

Furthermore, the consolidated criminal practice direction requires trial judges to instruct the jury on their responsibilities. The jury are warned about the need to try the case only on the evidence and about the prohibitions on internet searches and discussing any aspect of the case with anyone outside their number. Trial judges should also explain the need to bring any concerns, including concerns about the conduct of other jurors, to the attention of the judge at the time and not to wait until the case is concluded.

We are still considering the recommendations that inspired the new clause and are not yet in a position to respond, but we do believe that if they were to be implemented, it would be better to do so administratively than through legislation. I therefore cannot agree to the new clause.

Andrew Slaughter (Labour, Hammersmith)

I hear what the Minister says. I take it that he is at least prepared to look at the recommendations. I would slightly prefer it, if the stick is in the primary legislation, that the carrot be there as well. The Government should not be in the habit of cherry-picking the bits that they like from the Law Commission report, because the recommendations should be taken together. However, in the spirit of what the Minister has said—that these things will be taken seriously—I am happy not to press the new clause.

Clause 50 - Likelihood of substantially different outcome for applicant

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 135, in clause 50, page 52, line 3, leave out ‘must’ and insert ‘may’.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following:

Amendment 136, in clause 50, page 52, line 5, leave out ‘not’ and insert ‘choose not to’.

Amendment 140, in clause 50, page 52, line 19, leave out ‘must’ and insert ‘may’.

Andrew Slaughter (Labour, Hammersmith)

We now come to part 4. It may save some time if I take a few minutes now to explain how the Opposition wish to deal with this, the last major part of the Bill and, to our minds, the most important part. That is not to say that we have not had important debates so far. We had a wide-ranging debate on secure colleges; it went further than bricks and mortar and was really a debate about the whole future of youth justice and the youth estate. We are sceptical about that and are obviously willing to engage with the Government on it. We are very concerned about the recklessness of the Government’s continued engagement with a cartel of private companies. We are very worried about the increases in secret justice, whether that involves leapfrogging appeals from the Special Immigration Appeals Commission or magistrates courts sitting in private; we are worried about extending the principle of full costs recovery to the criminal courts as well as the civil courts; and we are concerned about the issue of prohibited conduct, although I have said that the Minister has been generous enough to say that he will look at that again.

That said, thus far the Bill is not exactly one of those great radical pieces of legislation. It will be remembered more as one of those criminal justice Bills that the Government introduce to fill up space in an increasingly empty legislative programme and even to stretch across two Sessions, but part 4 is significant. We heard in the evidence sessions that at times the Government seek to play down the significance by saying that the concessions that have been made—there have been some, such as the one on standing—mean that the changes are, in effect, technical or minor changes that will not affect the overall thrust of judicial review as an important tool of administrative law. We reject that.

The alternative view, which the Lord Chancellor has been playing up again this week in speaking to the Constitution Committee in the other place, is that judicial review actions are somehow politically motivated. He conjures up left-wing phantasms, which he says produce unnecessary judicial reviews to thwart the legitimate political process. That is summed up in the first sentence of the Government’s response to the consultation, in which the Lord Chancellor said:

“I believe in protecting judicial review as a check on unlawful executive action, but I am equally clear that it should not be abused, to act as a brake on growth.”

In speaking to clause 50, I hope to show how misconceived that view of judicial review is. Perhaps it is wilful blindness or perhaps the Secretary of State understands the function of judicial review and simply chooses to ignore it, but this is a dangerous course that we are embarking on, and part 4 of the Bill deserves to be taken very seriously.

The clauses form a package. Clauses 50, 53 and 54 are the most invidious—I will speak to clauses 51 and 52 as well—and they cannot be judged on their merits outside the other restrictions on judicial review, which seem to happen almost every month. We had the restrictions on the planning cases, which were debated in a Delegated Legislation Committee only because the statutory instrument was prayed against last year. It means that, in planning cases, proceedings have to be brought within six weeks, which is clearly difficult, particularly for the type of organisations that tend to bring judicial reviews in planning cases. We had new fees and restrictions on renewing applications, and last Friday the new limitations on the availability of legal aid were published. New clause 23 deals with part of that—not the substance of the regulations, but the fact that we should not be having regulations at all on this matter. The matter ought to be in the Bill. It is part and parcel of the sustained, cumulative attack on judicial review.

We can judge the opposition to the Government’s proposal from the evidence sessions. We heard from some of the most eminent practitioners in the country, not only professional bodies such as the Law Society and the Bar Council, but intervening groups and non-governmental organisations such as Justice, Liberty and the Public Law Project, which are considered to be the ultimate authority in the area. We also heard from the Constitutional and Administrative Law Bar Association, Nicola Mackintosh, Nick Armstrong, Adam Wagner, Michael Fordham and Angus Walker, who are some of the leading exponents.

We heard from many of the groups that had been involved in some of the seminal judicial reviews, including the trade unions, the Howard League in relation to prisoners, Shelter in relation to homelessness, and the Campaign to Protect Rural England in relation to planning applications. They were all absolutely united in the view that there would be a severely deleterious effect on the process of administrative law in this country.

The Minister cited one person, I think. It was at Justice questions when it was put to him by my hon. Friend the Member for Wythenshawe and Sale East that we had heard from 17 leading experts in the field of judicial review, and not one had had a good word to say for the Government. That is extraordinary, given that most of the witnesses—certainly the lion’s share—are selected by the Government to give a view of the issue across the piece. The response from the Minister was:

“he will find that one of the very last people to speak—I am thinking of only one person who comes to mind—said that the reforms would be helpful for development.”—[Official Report, 18 March 2014; Vol. 577, c. 631.]

I am not sure that the Minister helped his case by saying that there were 17 for and one against. I went back to look at the evidence from that gentleman—a very pleasant and honest individual—and he said:

“I have only had sight of the Bill. I have been dealing with the consultation paper and I am attending at late notice”.––[Official Report, Criminal Justice and Courts Public Bill Committee, 13 March 2014; c. 150, Q341.]

Shailesh Vara (Conservative, North West Cambridgeshire)

I do not have the precise text with me. The hon. Gentleman is true to form in being selective with his quotes. If he reads the text, he will see that the gentleman concerned said that he broadly supported the measures.

Andrew Slaughter (Labour, Hammersmith)

I absolutely agree with the Minister.

Shailesh Vara (Conservative, North West Cambridgeshire)

I am grateful to the hon. Gentleman for agreeing with me.

Andrew Slaughter (Labour, Hammersmith)

I absolutely agree, but the gentleman did so from a position of ignorance. When we weigh the evidence in the scales, we have people such as Michael Fordham QC, who told us that his practitioner book on judicial review is in its sixth edition, and the director of Taylor Wimpey who said, “I haven’t read the Bill and have come here at the last minute to fill in for somebody else.” If the Minister wishes to pray that in aid, so be it.

Bob Neill (Conservative, Bromley and Chislehurst)

Does the hon. Gentleman think that the directors of major public companies may be a little more in touch with the economic realities of the abuse of judicial review, which we sometimes see, than those who are part of the industry that has grown up around it?

Roger Gale (Conservative, North Thanet)

Order. In the circumstances, we should not be inclined to go too far down this road given the nature of the reason why a replacement was inserted at the last minute.

Andrew Slaughter (Labour, Hammersmith)

I make no criticism of the gentleman concerned. He did his best in the circumstances and he said what he said. However, I disagree with what the hon. Gentleman says. I am holding an article from The Sunday Times headed “Wimpey director wrote Tories’ new planning law”. It says:

“Senior figures in the health building industry—including an executive from Taylor Wimpey—were recruited by the government to draft new planning rules that pave the way for thousands of homes on greenfield sites.”

So, yes, he certainly has some purchase on the issue, but what the motives of the major house builders and major developers may be in opposing the proper administrative scrutiny of decisions that are made on planning matters, I will leave hanging in the air.

Bob Neill (Conservative, Bromley and Chislehurst)

Perhaps, in the same spirit of transparency, the hon. Gentleman can tell us which trade unions have helped him with his briefing notes.

Roger Gale (Conservative, North Thanet)

Order. Until now, our proceedings have been reasonably seemly, and I would prefer to keep it that way.

Andrew Slaughter (Labour, Hammersmith)

This is probably rather late in proceedings to make a declaration, but I do believe in transparency. I should perhaps say that I am a non-practising member of the Bar. I am a member of the Unite and GMB trade unions, neither of which I have had any contact with in relation to the Bill, although I am most grateful, as I am sure the hon. Gentleman is, for the helpful briefings and evidence given by the PCS union and the TUC. Other hon. Members may make references as they wish in their time. I am proud that I am a member of all those organisations, even the Bar Council.

Roger Gale (Conservative, North Thanet)

Order. I fail to see what any of this has to do with the amendments under discussion. May we please now return to the Bill?

Andrew Slaughter (Labour, Hammersmith)

Absolutely, Sir Roger. I said that because of the overwhelming weight of opinion in relation to these clauses. We have talked about the witnesses giving evidence and we have also had the benefit of evidence from the UN High Commissioner for Refugees, Citizens Advice, Immigration Law Practitioners’ Association, Friends of the Earth and the Coalition for Access to Justice for the Environment. That is a completely eclectic range from across politics and different specialisms; it is not just practitioners—lawyers speaking on behalf of the law—but people who have earnestly and justly sought to represent aggrieved constituents or claimants.

We heard, in particular in the evidence of Nicola Mackintosh and Nick Armstrong, that in many judicial review cases the applicants are vulnerable people. That happens in immigration, prison and community care cases. Some cases are more sympathetic than others, but those people all have the right to have their case heard before the courts, which is what the Government are seeking to prevent.

The Government’s consultation attracted 325 responses, and I had a look at where the balance lay. It was about 10:1 against with respect to clause 50. It was slightly more than 10:1 against in relation to protective costs orders, and about 6:1 against with respect to interveners. It has become commonplace that the Government—and the Department and the Secretary of State in particular—wilfully ignore the evidence that is presented to them. The decisions that have been made are based on political gut instincts. The Secretary of State’s allegation in a Daily Mail article that the purpose of judicial review is to provide a platform for left-wing campaigners was an absurdity. I am in no doubt that the clause will receive attention when it goes to the other place, because I read Lord Pannick’s article in The Times.

I am glad that the amendments are grouped together. Amendments 135, 136 and 140 deal primarily with discretion; they would allow the court to show discretion, replacing “must” with “may”. Amendments 137, 139 and 142 effectively would reinstate the current test, going back from the “highly likely” test to the inevitability test. For the avoidance of doubt, although I should be happy for any of those routes to be taken to improve the clause, I intend simply to vote against it wholesale. I see no merit in it, and neither, from what I read, can almost anyone else.

Lord Pannick said in his article in The Times:

“Clause 50 of the Criminal Justice and Courts Bill has the purpose and effect of restricting judicial review, one of the cornerstones of the rule of law. The proposals should alarm all those concerned to promote high standards of government.

Clause 50 provides that courts and tribunals must refuse to allow a judicial review application to proceed to a full hearing if the defendant shows that it is ‘highly likely’ that the outcome for the applicant ‘would not have been substantially different if the conduct complained of had not occurred’. If the case does proceed to a full hearing, the court must refuse any remedy to the applicant if that same test is satisfied.

The proposal is objectionable for constitutional reasons. The clause will instruct judges to ignore unlawful conduct and to do so in a context where the government itself is the main defendant.”

Lord Pannick continued:

“The proposal is also objectionable because it fails to understand that judicial review is not just concerned with the narrow interests of the individual claimant.

Judicial review serves the public interest by exposing systematic breaches of legal requirements.

Because judicial review exposes errors of law and abuses of power, it encourages high standards of government administration…and deters such defects in the future”

He added:

“the law requires administrative bodies to adopt a fair procedure not just to ensure that the right conclusion is reached on the merits, but also to ensure that the subject of such a decision is not left with a sense of injustice.”

Lord Pannick quoted the South African constitutional court as saying that a similar proposal in that country

“conflates the different and separate questions of unlawfulness and remedy”.

He utterly refuted and rebutted the Lord Chancellor’s comments on left-wing campaigners and pointed out that the senior judiciary said in their response that they found no

“evidence of inappropriate use of judicial review as a campaigning tool, and it is not the experience of the senior judiciary that this is a common problem.”

I do not think that one could set out more succinctly why the clause is both unnecessary and a very dangerous precedent to set.

Let me explain in a little more detail what the negative effect of the clause will be. We have had many briefings on this subject, but I am particularly grateful for those that Justice and Liberty have provided to the Committee. I hope that members of the Committee had a chance to look at those briefings, as well as the evidence that we were given. I will not take too much of the Committee’s time to quote copiously from those documents, but they are all evidence before the Committee and individually and collectively they produce a compelling case to show why this clause in particular should not stand part of the Bill.

Let me briefly summarise the arguments. Liberty says:

“Under the current approach, when a court is satisfied that the outcome of a decision would ‘inevitably’ have been the same if the defect complained of had not occurred, it can refuse to grant the remedy sought…A JR”—

that is, a judicial review—

“can be brought on the grounds that the decision made by a public body was procedurally incorrect. Historically, a procedurally incorrect decision was known as one which breached the rules of natural justice. The two elements of procedural correctness are the rule against bias and the duty to act fairly…This ground of review sums up the essence of JR and why it matters. Concerned not with the outcome or the merits of the decision, it reflects the fundamental importance of lawful, transparent and fair decision making by those exercising public powers. The repercussions of arbitrary or biased decision making are felt widely, undermining confidence in public bodies and driving down standards. Even where individuals are not satisfied with the outcome of a decision-making process, the fact that they have been given a fair hearing often serves to satisfy their sense of justice and promotes trust in state institutions and democratic processes…Do we really want to suggest that the process by which executive decisions are made is…of little consequence? If a poorly performing public authority randomly stumbles on the right answer without process or reason, does the Lord Chancellor really believe there is no cause for judicial oversight?...This…alters the nature of JR. It forces the judiciary to move away from pronouncing on whether the decision was legally correct and properly taken, and instead asks them to place themselves in the position of the decision maker. It fundamentally undermines the purpose of JR, which is to test not for outcome but for compliance with law and process.”

That is a key point, for two reasons. The first is that there is a fundamental misunderstanding, which is clearly in the Lord Chancellor’s mind and perhaps in the Minister’s mind too, of what the function of judicial review is about. It is not about the decision that is taken; it is about the process for making that decision. In seeking to limit the access to judicial review, by introducing the “highly likely” test, the effect will be exactly the opposite of what the Government intend. The effect will be that the judge will now have to stand in the shoes of the decision maker. They will have to enter the political forum, and they may have to do so at an early stage—that is to say at the permission stage. Therefore we have the absurdity, first, of effectively having a full trial at a preliminary hearing, and, secondly, of having a trial on a matter that the court does not wish to hear and is not probably not competent to hear—that is to say, on what the merits of the decision will be.

This is so wrong that it is a wonder to me that we have got this far in the process. Liberty continues:

“There was no evidence adduced to support the claim that courts exceed or confuse their jurisdiction in JR processes…Requiring judges to consider the merits of a decision rather than the so-called ‘technicalities’ of the process is constitutionally inappropriate.

In a democracy under the Rule of Law, it is imperative that public bodies are required to behave in accordance with the law. JR is a mechanism for testing legality in a particular case but also helps to create an environment in which public bodies know that consequences will follow if they act with disregard for the law. Completely removing the discretion for judges to grant relief in cases where a ‘no difference’ argument has been made out—regardless of the nature of the conduct of the defendant—by requiring the court to refuse any relief, removes a key incentive for public bodies to exercise their powers properly…Removing the clause from the Bill would not mean that ‘no difference’ arguments cannot be made, but would mean that public bodies would operate in the shadow of the courts, knowing that if they do not follow the rules of natural justice then they will be liable to account for it.”

That turns on the misconceived point about the role of Parliament. Judicial review is a review by the judiciary of the Executive. It is part of the constitution. It is part of the separation of powers. That is not to say that there can never be changes in the process. It is not right to say that the Opposition or practitioners oppose improvements, changes and efficiencies. Indeed, when Mr Fordham gave evidence he referred us to the Bingham Centre report, “Streamlining Judicial Review in a Manner Consistent with the Rule of Law.” That included 25 separate recommendations for improving issues of cost and efficiency. One of them is dealt with in new clause 16. As far as I know, the Government have shown no interest in those recommendations. This is simply about establishing that it is a political process and not one that is designed to improve the performance of the court.

The Bingham Centre, a well respected think-tank, quotes the Master of the Rolls on exactly the matter we are dealing with in the clause. It says:

“We think these proposals are objectionable in principle. In our view, there are constitutional objections in dictating to courts that they should condone what they assess to be a material public law unlawfulness. The courts’ careful calibration of the ‘materiality’ principle involves asking whether ‘the decision would inevitably have been the same’, and there are reasons of principle why ‘the court should be wary of refusing relief on the grounds that the decision-making body would reach the same decision if it were to act lawfully’, remembering always the importance of ‘the maintenance of the rule of law itself and the constitutional protection afforded by judicial review’.”

What the Government are doing here was described by Mr Fordham in his evidence as, in quite a memorable phrase, “a constitutional provocation”. That is exactly what it is. In the circumstances that we are discussing, it is the role of Parliament not to assert its authority over the courts but to temper the instinct of the Executive to intervene where the judiciary is quite properly acting. That is another important point about clause. The Government are acting in a self-serving way. Unlike in many other areas of Government action, whether we agree them with or not, the clause and the other clauses in this part of the Bill serve to protect the Government from proper scrutiny.

Further evidence states that

“the constitutional importance of judicial review places a significant responsibility on reformers to justify the need for change and to ensure that adequate safeguards are in place to preserve access to justice, accountability and good administration. Parliament should ensure that the Government takes this obligation seriously”,

and that

“no reliable evidence has been produced to support the Government’s claim that judicial review is open to abuse or that an expansion in the use of judicial review is such that significant restriction is necessary.”

The concerns are not primarily about cost. The saving is estimated to be at most about £6 million. I do not think the Government say that that is their main motivation, and it ignores any disbenefit for the taxpayer that may result. The Bingham recommendations look across the piece at the way judicial review operates, procedurally and as far as respondents and applicants are concerned. All the clauses in this part of the Bill bear down on individuals bringing judicial review, and they are designed to deter or prevent claims against the Government or public agencies and to restrict the discretion of the courts to control litigation.

I am conscious of the time, Sir Roger. I could say a great deal more about the clause, but others may wish to speak. There are a number of ways to remedy the defect that I have mentioned. One would be simply to amend the clause to leave the position as it is now, because the courts have ample power to regulate their own business, to discourage unmeritorious claims and, by cost penalties or directions, to ensure that judicial review proceeds in a proper fashion. The simplest way would be to make the clause discretionary rather than compulsory. However, the most sensible thing would be to get rid of it and the following clauses altogether. My intention, subject to what I hear in the rest of the debate, is not to press any of the amendments to a vote, but to vote against the clause.

Roger Gale (Conservative, North Thanet)

Before we proceed, I will say that I am going to treat this as a stand part debate, which means there will be no stand part debate at the end of the debate on the clause. Hon. Members on both sides of the Committee may wish to bear that in mind when discussing these amendments and the next group. That should give more than adequate scope for the necessary discussion.

Valerie Vaz (Labour, Walsall South)

It is a pleasure to serve under your chairmanship, Sir Roger.

We come to an important part of the Bill that goes to the heart of the relationship between the citizen and the state, and how it has been curbed. Over the past three weeks we have discussed, debated and listened to witnesses talk about this important Bill, but from reading the papers one might think that the only important things happening are that Kate Bush is on tour and that Gwyneth Paltrow and Chris Martin are going through a “conscious uncoupling”. But we know how important the Bill is because we have been working hard on it.

My concern is that the Government are getting a reputation for being authoritarian, wanting to stifle due process and calling people names if they object—some of the witnesses were called left-wing. The Bar Council and the Law Society are not hotbeds of radicalism but independent bodies that have to focus their attention on what happens to their members and how they can assist them. I have no idea what their politics are, but we need to hear their views because they are the practitioners who will have to work through the proposals. The clause strikes at the heart of the ability to hold decision makers to account. The Government are asking judges to look behind and interfere with decisions, but that is not their role.

I will set out what Parliament and the different arms of Government do. Parliament passes legislation and gives the Executive—the Government of the day and their staff—the power to put those laws into effect, and judges look at whether that power is exercised in a lawful way. That is the golden triangle: the judiciary, the Executive and Parliament, each with its specific constitutional role. The clause and others in part 4 seek to bind the judiciary and instruct them how to operate. The judiciary are not experts in the fields in which those decisions are made; their role is only to review the lawfulness of the decision. As Lord Bingham put it:

“They are auditors of legality”.

There is nothing malevolent about judicial reviews. I have gone through many myself—even on behalf of the Government. It is irritating to have to make a decision again because it is flawed, but it is right that the judiciary do not overrule Parliament. All the judiciary do in a judicial review is to look at how the decision was made and whether it is within the law. Lord Reid pointed out that judges do not look behind what Parliament wants, but seek

“the meaning of the words which Parliament used.”

If the Government included the clauses to curb excessive judicial review, I ask for evidence of that. The clauses are not based on evidence. The figures from the Ministry of Justice are clear: from 2000 to 2012, criminal JRs increased from 336 to 358—a rise of only 22 over 12 years. Civil JRs, other than immigration and asylum cases, increased from 1,752 to 2,118—an increase of only 366. There has been an increase in immigration and asylum cases—from 2,150 to 9,958—but they are going to be moved to a separate tribunal. However, perhaps the increase is down to the fact that there are not enough staff at UK Visas and Immigration or the UK Border Agency—however it is styled now—to review those decisions. Having taken some of those cases, I know that some of the evidence before the decision makers is horrific. Now there are two pairs of eyes to ensure that the decision is taken correctly at UKVI.

There is more conflict around the world, and quite rightly people are looking to Britain as a place to seek a safe haven. However, it is right that Britain ensures that their cases are dealt with on merit, and that spurious cases do not come through. That is what happens.

What about “totally without merit”? The Lord Chancellor has said that many judicial reviews are “totally without merit”, but judges decide that now. When they refuse permission, they can certify that a case is TWM. From 1 October 2012 to 30 September 2013, the proportion of cases certified as TWM was 31% for immigration and asylum cases, compared with 14% for civil cases. Judges have also started the practice of certifying cases and making orders to say that people may appeal from abroad, so there is no bar to deportation.

In my view, Parliament should not be telling judges how to run their courts. That is for the procedure committees and rules committees to do. Courts consistently issue practice directions when they feel that cases are not being run properly. The Government must consider carefully whether they want to embark on a constitutional collision course, as many witnesses told us. I hope not, so I would ask the Government to remove the clause from the Bill.

Sarah Champion (Labour, Rotherham)

I rise to support the amendments tabled by my hon. Friends the Members for Hammersmith and for Barnsley Central. I would like to share my experience of judicial reviews, based on the recent case concerning the Liverpool city and South Yorkshire regions, which has a direct influence on my constituency in Rotherham.

As a precursor, I accept that the number of judicial review cases has risen, as outlined by my hon. Friend the Member for Walsall South. However, I am not certain that the revisions to judicial review will give a fair outcome to parties seeking review. I will focus on clause 50 and the proposal that the likely outcome will be assessed as part of the process leading to a judicial review being granted, rather than the legality of the process itself leading up to said outcome.

In the case of the South Yorkshire and Liverpool regions, on 7 February 2014 the two regions won a High Court action, which concluded that cuts in European funding were unlawful. Lawyers bringing the action argued that the reduction in funding—a significant 65%—was disproportionate compared with other areas. Evidence presented to the court showed that Ministers allocated €150 million less to Liverpool city region and almost €90 million less to South Yorkshire than they had estimated their share to be. That would have meant that, over the next seven years, the funding to Liverpool city region would be €147 per head of population, compared with €380 under the previous funding round from 2007 to 2013.

A judicial review case was filed in September 2013, and it was deemed that the process, rather than the outcome, was out of order. In the High Court order, the judge requested that the Government adjust their allocation of funding from Europe, as the calculation method used to distribute a total of €110 billion in the European regional development fund and the European social fund was flawed. Had the decision not been challenged, the funding that was originally to have been allocated to Liverpool city region and South Yorkshire would have been spread across other regions.

Under the current judicial review process, South Yorkshire and Liverpool were right to file for judicial review, as they believed that the decision-making process was flawed. Logic would suggest that if the decision-making process was flawed, the likelihood is that the decision itself would be flawed. Unsurprisingly, the judge ordered the Government to reconsider the funding arrangement.

The difficulty, of course, is that we will never know what would have happened in the case had clause 50 been in place. The Government, already having a series of funding arrangements in mind, would have been likely to grant the same levels of funding to South Yorkshire and Liverpool regardless of the process under which the funding allocation was decided. If it had been deemed that South Yorkshire and Liverpool would have been likely to receive the same amount of funding at the application stage, their application would have been taken no further.

To be clear, in the South Yorkshire and Liverpool case, my suspicion is that the likely outcome would have been assessed as being the same regardless of the flawed process. The case might have been unable to progress from the beginning, meaning that up to 3.6 million people would not have been able to access funding worth tens of billions of euros. Such considerations and the predictions of likely outcome will now become part of the law under the clause.

I have no doubt that in some areas the clause will tighten up judicial reviews that are regarded as wasteful, but at the same time I strongly believe that the case that I have mentioned would not have made it to court if the clause had been used to evaluate it. Was the process flawed? Yes. Is the outcome likely to be similar? Perhaps, yes. Does that mean that the people of Liverpool city and south Yorkshire regions should not be afforded the opportunity to challenge? No. In the slim chance that the outcome would have changed for them in taking the case to the courts, the two regions would have been immeasurably better off. It is only right that the people of those regions are allowed to challenge the decision.

A faulty process often leads to a flawed decision and, even if the outcome may have been the same, we need to consider those rare few cases where the outcome is predicted to stay the same, so that judicial review is not granted yet the outcome is then prevented from changing. However, by agreeing to the clause in its current form, we will prevent case law from forming based on the one in 100 cases where the outcome might have been predicted to stay the same but in fact, did not stay the same. We are taking the powers of the formation of case law away from judges and are instead putting the power of decision making into the hands of people less experienced in making those decisions.

It is right to state that the number of judicial review cases is worryingly high and that the system may be being exploited in some cases—and that those cases may cost the state—but I implore the Minister to look at the case of Liverpool city region and South Yorkshire as an example of why the clause is flawed. We must allow flawed processes to be challenged, so that the people involved in cases where an outcome becomes different are granted that outcome, rather than having it snatched away from them before it even goes to court.

Bob Neill (Conservative, Bromley and Chislehurst)

It is a pleasure to serve under your chairmanship, Sir Roger. I shall be brief, because there is a lot of business to get through.

First, with respect to Opposition Members, their suggestion of some fundamental threat to judicial review as a concept is seriously overstated. A number of witnesses conceded that, ultimately, there is an issue of fact and balance about where the line is drawn in judicial review cases, and the Secretary of State has recognised that in some of the changes that he has made. This is not about abolishing judicial review; it is about reviewing where the appropriate balance lies between what is sensible and practical and the right to challenge decisions. That is a legitimate thing for any Government to propose to Parliament for it to decide on.

Secondly, judicial review is an important part of our public law system—nobody doubts that—but it is a comparatively recent development in the history of our jurisprudence, certainly in its modern format. We have always had the certiorari and mandamus orders, but anybody from the period when I was qualifying at the bar will remember that they were used sparingly. It is only since the judgment of Lord Denning—against a Labour Government, ironically—in the mid-’70s that there has been significant growth in the current form of administrative law. This is not hacking away at Magna Carta, as is sometimes said in a rather exaggerated fashion.

We have often talked as if judicial review were exclusively a challenge to the exercise of the Executive, in the form of the national Government, but that is not so. When I was Local Government Minister, and when I was a local councillor, it struck me that, often, democratically elected local authorities were on the receiving end of judicial review cases, some of which were unmeritorious. The burden of an unmeritorious judicial review upon a local authority can be harsh, particularly if it is one of the smaller district councils.

Valerie Vaz (Labour, Walsall South)

John Gallagher from Shelter said that homelessness decisions are the only ones that can be dealt with by judicial review.

Bob Neill (Conservative, Bromley and Chislehurst)

With respect, perhaps the hon. Lady could have waited until I had developed the point. Of course, there are sometimes meritorious challenges to local authorities, but my point, which she did not mention in her intervention, was that for a local authority—particularly a small district council that may be a planning authority—the burden, both financially and practically, of an unmeritorious judicial review could be particularly harsh, because it has less capacity to absorb that than a large Department has.

Sometimes, judicial review can be used against the interests of local democracy. One can think of examples in the planning sphere in particular where this has been the case at both ends of the spectrum. Anyone who is acquainted, as I was when I was a Minister, with the Dale Farm planning application for a controversial Gypsy and Traveller site will know that Basildon district council, which was acting in accordance with what was clearly the wishes of its residents in seeking to enforce its planning policy, was put to great expense and the residents of that area were put to real and serious hardship by the continual abuse of judicial review and linked processes in that case. That is the sort of thing that should be dealt with.

At the other end of the spectrum, we often saw quite predatory and well funded commercial development companies challenging refusals of planning permission on greenfield land by local authorities, again acting in accordance with the wishes of their residents, sometimes in accordance with their emerging development plans. There was almost a war of attrition by big developers using judicial review to overturn a policy decision rather than a process decision. I think it is legitimate to ask if we have got the balance right in those sorts of cases.

Julie Hilling (Labour, Bolton West)

Does the hon. Gentleman agree that the measure could be seen to be a sledgehammer to crack a nut? Clearly, in some cases judicial review has been detrimental to an area or to individuals in that area, but the proposed system would make it much more difficult for those who are usually the least powerful to challenge those in power to get the result that is needed. To quote one or two examples is unfair to the whole system of judicial review.

Bob Neill (Conservative, Bromley and Chislehurst)

No, I do not accept that. We have had a number of examples quoted where, as the Minister and I have conceded in all our comments, there are appropriate uses for judicial review. We have had some instances of vulnerable people using it to challenge, but there are also instances—a significantly increasing number of instances—where judicial review has not been used for its true purpose, but has been used to unpick policy decisions rather than to correct administrative error.

Andrew Slaughter (Labour, Hammersmith)

Why does the hon. Gentleman not trust the courts to use their discretion, which they do in a robust fashion? Why, as an alternative to the courts, which are the proper bodies to address these matters, does he put the Executive in and allow the Government to set the rules in their own favour? This is a self-serving ambition on the part of the Executive to prevent any dissent.

Bob Neill (Conservative, Bromley and Chislehurst)

Unfortunately, the hon. Gentleman did not listen to the point that I was making. This is not purely about the Executive in the sense of local government. The fact is that the Executive does ultimately have a degree of accountability via Parliament, in the same way that a local authority is democratically elected and democratically accountable. It is legitimate to recognise the validity in constitutional terms of local authorities’ situation and that they should not be subject to an abuse of the judicial review process.

The hon. Gentleman’s intervention neatly brings me on to my final point which relates specifically to clause 50 and the change in the test to “makes no difference”. As somebody who practised at the criminal Bar for most of my career, I know that in recent criminal jurisprudence history there has always been the ability, on an appeal to the Court of Appeal criminal division, for the court to decide that it would apply what was called the proviso. Where the Court of Appeal decided that the judge at first instance—the decision maker, in other words—had misdirected the jury and so made a technical error, but the overall weight of evidence in the case was such that the error made no difference to the jury’s conclusion and there was no miscarriage of justice, it could apply the proviso and dismiss the appeal, even though there might have been a technical error in the judge’s summing up and decision making.

If it is acceptable for that ability to apply in relation to an error by judge in the sort of case where the liberty of the subject may be at stake, it is not unreasonable to say that the same practical recognition of reality in the ultimate decision should not also apply in the case of administrative law. The idea that it is possible to say that there was a technical fault that would not have altered the outcome or what we would regard as the justice of the case is a legitimate measure to incorporate into public law, as it is already incorporated into our criminal law.

Mike Kane (Labour, Wythenshawe and Sale East)

I was not angry until I came to this place and heard the speech from the hon. Member for Bromley and Chislehurst. Surely it stems from the Aristotelian notion of market, state and civil society: to keep ourselves civilised we should have a strong civil society against the unfettered powers of the market and the state. That can be achieved only through people coming together, which can be done only, as Nicholas Fluck, president of the Law Society, said, if ordinary people can take their cases forward. I cited the case of my constituent, Pat Connor, who took the council to judicial review over the 1985 taxi legislation and the unfair and unjust way it consulted. That is the only way a constituent like Pat Connor could access the judicial system.

Bob Neill (Conservative, Bromley and Chislehurst)

I am sorry I provoked the hon. Gentleman. Can I assure him that I have never used any concept of Aristotelian notions to any British jury?

Mike Kane (Labour, Wythenshawe and Sale East)

I am glad I could introduce the hon. Gentleman to it. We are all members of mediating associations. We come together, first, to participate in society. That is why I sit on the Labour Benches. I am proud to be a member of the trade unions, Unite and Community, I am proud to be a Stretford Wheeler, I am proud to be a member of Manchester City and I am proud to be a member of the Fianna Phadraig Irish pipe band in my constituency. We come together in mediating institutions to promote society and to make the world a better place to be. There is the world as it is and the world as it should be. It is a slippery slope when the state starts legislating in this way and Governments feel that they must have more power for themselves over civil society institutions.

Shailesh Vara (Conservative, North West Cambridgeshire)

From a debate that started in a relatively quiet and measured way, we certainly had some passion and excitement at the end. I thank all those who spoke in the debate: the hon. Members for Walsall South, for Rotherham and for Wythenshawe and Sale East—he is certainly not wasting time in getting acquainted with the procedures of debate in the House—and my hon. Friend the Member for Bromley and Chislehurst. Although I appreciate the passion with which the contributions were made, I think the matter was probably best summed up by my hon. Friend when he said that the threat is being “seriously overstated”—his exact words. From listening to some of the speeches, one would think that we were scrapping judicial review in its entirety. We are not. We are simply trying to ensure that meritorious applications proceed and unmeritorious ones do not.

Mike Kane (Labour, Wythenshawe and Sale East)

I think that Thomas More said that we take these things away one piece at a time, and when it is all gone and things turn on us, how do we face up to power?

Shailesh Vara (Conservative, North West Cambridgeshire)

As the hon. Gentleman is in the business of quotations, may I refer him to his contribution in the Committee evidence session? He raised the question of Plantagenet Alliance Ltd in the context of whether the witness thought that appeal was a good one. It is all very well quoting, but I suggest that one of the lessons the hon. Gentleman might wish to learn as a relatively new Member is that he should remember his own contributions, which are recorded in Hansard.

Andrew Slaughter (Labour, Hammersmith)

I am made almost speechless by the double standards of the Minister. Here we hear the other side of the coin—the emollient approach—“Oh, there’s nothing to worry about in the Bill.” In fact, this week in a Committee in the other place, the Secretary of State was banging the drum again:

“Campaign groups are undermining parliament by launching too many court challenges aimed at overturning Government policy and avoiding costs by hiding behind ‘human shields’”.

As for Richard III, the Plantagenet Alliance claim would seem to be meritorious, but now the Secretary of State is wasting a great deal of public money appealing against it.

Shailesh Vara (Conservative, North West Cambridgeshire)

The hon. Gentleman simply does not understand the issue and I am not going to dignify his comments with a reply. If he were to take the trouble to look at the case of the Plantagenet Alliance, he would realise that this is precisely the type of case that we are trying to avoid, where people set up a £100 shelf company, hide behind its veil and it is the taxpayer who loses out. It is money that could be spent for other purposes. My hon. Friend the Member for Bromley and Chislehurst summed it up with the practical examples that he gave.

The hon. Member for Hammersmith spoke of the Fordham report. We are, of course, considering the recommendations in Michael Fordham’s report, which was published last month, but we think that there remains a compelling case to take forward the reforms in the Bill. As for funding and the concerns of the hon. Member for Rotherham about people being refused permission under clause 50, the threshold is still high. If the court considered there was doubt, it would grant permission, as it does now. It would be for the court to consider if the threshold is met.

Various members spoke in terms of statistics. May I give some statistics, which were published only this morning? The use of judicial review has increased more than threefold in recent years, from around 4,300 cases in 2000, to around 15,700 in 2013. Of these, civil judicial reviews have increased by 27%, from 1,745 in 2000 to 2,210 in 2013. In 2012, only about 1,400 of the 7,600 judicial reviews considered for permission or at oral renewal were granted permission to proceed—that is 20%.

Incidentally, for the record I declare that I am a non-practising solicitor and have been so for many years. I should perhaps have made that clear at the outset.

Andrew Slaughter (Labour, Hammersmith)

Or a trade unionist?

Shailesh Vara (Conservative, North West Cambridgeshire)

I am not a member of any trade union.

Clause 50 modifies how the High Court or upper tribunal deals with judicial reviews, where the matter complained of was highly unlikely to have resulted in a substantially different outcome for the applicant. The clause is designed to bite on errors in procedure that are highly unlikely to have changed the end result. Let me give members an example. In question is an issue concerning a pedestrian crossing; there may be 40 people to whom the issue applies. A particular circular goes into 39 homes, but for whatever reason does not go into the 40th home. Some 30 of the replies from those 39 people are of one view; then the 40th person, who did not receive the form, raises an issue, saying there is an error because she or he did not receive the form and was unable to reply. In that case, when 39 people out of a total of 40 have come to one conclusion, the reality is that one person, the 40th person, whatever opinion she or he may have expressed, is highly unlikely to have changed the end result. That is the type of scenario that we are looking at here. Ultimately, it is for the court to decide on the facts.

After the rhetoric and all the passion has been expended in terms of “Horror of horrors!” it is appropriate that we put matters in perspective and recognise that there has been abuse—and we have heard examples. We are not scrapping judicial reviews; we are putting matters into context and I hope that the example that I have given helps to do that.

Valerie Vaz (Labour, Walsall South)

I think that the Minister is saying that that one person’s view is not worth the same as everyone else’s.

Shailesh Vara (Conservative, North West Cambridgeshire)

I did not say that.

Valerie Vaz (Labour, Walsall South)

The Minister is saying that the view would not count. It is a matter for a judge to arbitrate between the state and a citizen and whether the state acted outside the law. Does he not agree with that?

Shailesh Vara (Conservative, North West Cambridgeshire)

I am afraid that the premise of the hon. Lady’s question is wrong. I did not say what she alleges. I said that whatever contribution the 31st person made, it would not make a difference to the final outcome, because 30 people came to one conclusion. That person could become the 31st person to agree with the decision, or there could be 30 people agreeing and one person opposing. Either way, the decision would not change.

I emphasise to the Committee that the clause does not break new ground, but builds on a point established by the courts on where an error would make no difference. We have heard a lot about the clause undermining the rule of law and the role of judicial review, but at its essence is Lord Denning’s dictum in the 1977 case of George v. Secretary of State for the Environment that

“there is no such thing as a technical breach of natural justice”.

It should not be open to individuals or groups to mount challenges on technicalities that would have been unlikely to make any difference to the outcome. Lord Denning was Master of the Rolls when some members of the Committee were at law school reading up on various verdicts in various cases.

At present, the courts will find that there had been no difference made where the end result would inevitably be the same. That is an extremely high threshold which, in the Government’s view, means that judicial reviews can be grounded on technicalities that would in practice have made no difference to the end result or, ultimately, the applicant. That is why the power comes up so rarely, and that is why we want to modify the current approach. Clause 50 does that by requiring the court to refuse permission or a remedy where it is satisfied that the argued ground or grounds for judicial review would be highly unlikely to cause a substantially different outcome for the applicant. I assure hon. Members that, as drafted, clause 50 does not make the exercise of the power in any way routine. That is because the clause applies the standard of “highly likely”. That will remain a high threshold, and where there is any significant doubt that there could have been a difference for the applicant, the threshold would not be met.

The amendments would revise three elements of the clause. The first is the requirement for the court to consider an argument by a defendant that it is highly likely that a procedural defect made a substantial difference. The second is the requirement to refuse permission where it is highly likely that there would have been no difference. The third is the requirement to refuse to grant a remedy where there would have been no difference. The substitution of “may” for “must” in each would mean that the requirement is replaced with an option to do so. That would significantly weaken the utility of the clause in dealing with minor technicalities in a proportionate manner.

Under clause 50, the High Court and upper tribunal will retain significant discretion over the application of the clause. Crucially and properly, the discretion will extend to whether it is highly likely that the procedural defect would have made a difference in any given case, whether there was a substantial difference and whether that difference affected the applicant. Indeed, the term “highly likely” will fall to be interpreted by the courts.

Where the court comes to the conclusion that it is highly likely that there would have been no difference, the Government’s view is that it should grant neither permission, if raised at that stage, nor a remedy. That is entirely in line with Lord Denning who, in the case I mentioned earlier, also held that the court

“should not find a breach of natural justice unless there has been substantial prejudice to the applicant as a result of the mistake or error which has been made.”

Doing otherwise simply continues the recipe for judicial reviews brought on minor technicalities to delay and hinder progress. I remain confident that the clause strikes a fair and sensible balance between limiting the potential for the abuse of judicial review and protecting its vital role as a check on public authorities. I therefore ask the hon. Gentleman to withdraw the amendment.

Andrew Slaughter (Labour, Hammersmith)

We have heard some interesting contributions but I am very disappointed by the Minister’s response—the content of it, as much as anything else. He explained what the clause does. We know what the clause does. He did not answer any of the points that were put to him in debate. I wonder what these debates are for if points that are raised are not dealt with. I enjoyed his zebra crossing analogy. It took us absolutely nowhere. There exists a power at the moment for the court to decide on the inevitability principle that a case will make no difference. I do not know whether the zebra crossing examples falls into that. The point is that by introducing this far more subjective “highly likely” test, the court will have to stand in the shoes of the decision maker and will constantly be reviewing and making decisions without the benefit of all the facts, without feeling comfortable doing so and often at a preliminary stage. That is what is procedurally defective about the clause.

The Minister has nothing to say about that at all. What we get is a recital of the same tired, old, incorrect facts. Let us deal with the issue of numbers of judicial reviews and numbers tripling or increasing by 30% or 40%. If the Minister is right—I think I will show that he is not—about an increase from 1,745 to 2,210 in the number of civil cases, that is the number of civil cases dealing with all administrative errors by public bodies in this country. Is the Minister seriously saying that that is a number that is out of control and needs to be constrained? I am shocked, quite frankly, at the paucity of the argument that is being put forward.

I refer the Minister to the submission, CJC 21 from the Public Law Project, which debunks these myths just as his myths about legal aid earning for barristers and the cost of the legal aid system have been debunked. Yet we hear the same canards time and time again. The submission says:

“analysis shows beyond doubt that, leaving aside asylum and immigration cases which are no longer dealt with in the Administrative Court, the numbers of judicial review cases have remained static for the last decade.”

Going back to the point made by the hon. Member for Bromley and Chislehurst, it points out that until O'Reilly v. Mackman in 1983, there was no judicial review process that could be quantified because public law matters were dealt with in another way. We do not know what the volume was at that stage. We do know that there was a substantial increase due to asylum and immigration cases and that matter has been dealt with. With some fluctuation, the number of civil cases remains relatively low and relatively static.

Dealing with the number of successful cases, the submission quotes the statement that in 2011-12

“‘there were 4,074 cases where legal aid was granted for an actual or prospective judicial review. Of these, 2,275 ended before applying for permission to the Court’. From this it appears that all 2,275 cases were concluded before being issued. From… research on settlement outcomes, it is likely that a majority of these 2,275 cases were settled in favour of claimants.”

Indeed, the whole process of settling before permission proceedings is most often in cases where the offending public body, having become subject to proceedings, admits that it has got it wrong and reaches a settlement with the applicant. That is entirely ignored. If that statement is right, at that point 56% of legally aided cases benefit from the efficiency of the judicial review process.

In summary, of those 4,074 cases, only 515 ended at permission stage without a benefit to the client. The Public Law Project concluded that,

“at the end of the permission stage, 87% of the sample of legally aided cases relied upon by the Government had either been settled, had ended following the refusal of permission but with substantive benefit recorded to the client, or had been granted permission.”

Judicial review is a selective, complex and difficult remedy. It is closely controlled by the administrative court, and it has a good success rate. In many cases, it is the only remedy that an applicant can find. That is why we find what the Government are doing obnoxious.

I will not read this into the record—we have spent enough time on Richard III in proceedings—but I recommend to hon. Members the excellent article, “Why Chris Grayling should bury his appeal against Richard III ruling” by Joshua Rozenberg. It goes through at length all the procedural and legal errors that the Ministry of Justice made that led it to waste so much public money. The article concluded:

“The judges are not being asked to decide where Richard III should be reinterred, an issue on which I remain indifferent. If the claim is successful, Grayling will merely be ordered to go away and think again. He could save the taxpayer a great deal of money by doing so now.”

The case on which the Government rely most for saying that this is an irrelevance is the one in which they have upped the ante and stoked up the cost, when they could have found a remedy very simply.

Finally, to respond to the hon. Member for Bromley and Chislehurst, I suggest that he goes back and reads the record of our evidence session with Mr Fordham, when we looked at the respective powers and responsibilities of the judiciary, Parliament and the Executive.

Shailesh Vara (Conservative, North West Cambridgeshire)

The hon. Gentleman is continuing his usual personal comments against the Lord Chancellor, which I think is highly regrettable.

The hon. Gentleman is good at quoting other people. It would be nice if he occasionally gave his own views. It is clear to me and many others that he is unable to think for himself and therefore has to rely so extensively on other people.

Andrew Slaughter (Labour, Hammersmith)

Now I have heard it all. The record will show exactly the points that I have made and where I have supported those points by evidence or by the opinion of learned authority. I suggest to the Minister and his boss that they would be better off taking the same course. What is sauce for the goose is sauce for the gander. It is not the Opposition who started ranting in the tabloid press about judicial review being

“a promotional tool for countless left-wing campaigners.”

This debate has been debased, and it has been debased by the actions of the Lord Chancellor.

Shailesh Vara (Conservative, North West Cambridgeshire)

Just for the record, I am in no way critical of the comments quoted by the hon. Gentleman. I am simply saying that it would be good to hear occasionally what he has to say, rather than the eminent people whom he regularly quotes. It would be nice to think that he can think for himself occasionally.

Andrew Slaughter (Labour, Hammersmith)

Bizarre. I think I will just ignore that and move on.

I suggest to the Minister that, rather than reading out the brief from his civil servants, which does not deal with any of the points raised in debate, he thinks carefully about what is said, whether the points that I raised, or the points that I cited in support of my argument—authority, if you will—and tries to answer them. His singular failure to do so throughout this debate so far—I can see it continuing as we go through the Bill clause by clause—is dereliction. It is not doing the job of Government, and it is not responding to points. It is symptomatic of the issue that we are dealing with here: an arrogant Executive who will not brook criticism or answer the points put to them. Where there are available channels of remedies to do that, they stifle and suppress them one way or another. Before the Minister decides to remove the mote from my eye, perhaps he will take the very large plank from his own.

Having said that, and in the comradely spirit in which such matters are generally conducted at the Ministry of Justice, I do not want to prolong debate on the clause. There are other clauses to deal with. The points have been made—whether they were made by me or cited by me after being made by more eminent authorities than I would ever pretend to be. I am sorry that they have not been answered, but there it is. We find the clause obnoxious and we will vote against it. I beg to ask leave to withdraw the amendment.

Roger Gale (Conservative, North Thanet)

The hon. Gentleman suggested he did not want to debate the clause further, but there are three more amendments. Does he want to speak to them? If not, I shall move the clause.

Andrew Slaughter (Labour, Hammersmith)

I think that what I said, whether it was proper to say it or not, was that my remarks would encompass the issues on both discretion and the restoration of the status quo.

Roger Gale (Conservative, North Thanet)

I trust that all hon. Members will return refreshed and in good humour after a good lunch.

Clause 51 - Provision of information about financial resources

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 144, in clause 51, page 53, line 16, at end insert

‘or the Court has ordered that such prescribed information need not be provided in whole or in part’.

It is a pleasure to see you back in the Chair, Mr Crausby, for this afternoon’s proceedings. We spent some time on clause 50, because it is an important clause. We probably went slightly wider than the clause in talking about the Government’s overall intent. I hope that we can be slightly more succinct about other clauses in this part of the Bill, although each has a role to play in the concerted campaign to undermine judicial review.

I was delighted over the short adjournment to have that wonderful sense of déjà vu when I found my Twitter stream being interrupted by the hon. Member for Cambridge, who is putting himself forward on Twitter as the saviour of judicial review, having just voted to destroy it. We got used to this on the Justice and Security Bill Committee, where the Liberal Democrats saved the country from secret courts by voting for them. I hope we do not have to go through this all over again.

Julian Huppert (Liberal Democrat, Cambridge)

I accept that the hon. Gentleman wants to make stuff up about what is said on Twitter, but he should at least be accurate. I and many others voted against that Bill and the propositions in it. He did not. He should stick to the clause we are discussing rather than making stuff up.

Andrew Slaughter (Labour, Hammersmith)

I have struck a nerve. I raised the issue merely to define the terms of the debate this afternoon so that we can see how the Liberal Democrats will vote on clauses 51 to 54. Will they vote to preserve the rights of the citizen and the individual against the over-mighty state or will they kowtow to their Conservative masters once again? We will see as proceedings unfold. I am only trying to wean the hon. Gentleman off his Twitter habit, but it will take more than me to do that.

Amendment 144 allows discretion in requesting information about financial resources. Why is this important? Clauses 51 and 52 are not the most obnoxious clauses. Unlike clauses 50, 53 and 54, they do not put down tank traps to stop the advance of the litigant. However, just as the other clauses do, but in a more insidious and subtle way, they discourage the litigant or the supporters of an individual litigant from taking judicial review proceedings.

The requirement on the courts to seek out and, in a way unfamiliar in other types of proceedings, delve into the background not just of the applicant, but of anyone who may by funding and supporting their case, looks all very well at first blush. However, it is highly significant in judicial review actions because they are often brought—increasingly so because of the cuts in legal aid—by individuals who raise money. They may raise money locally through community groups, for instance if they are resisting a developer or the closure of a hospital. They may raise money by getting the support of a charity, a non-governmental organisation or something of that kind.

The spurious justification for the requirement is that the Government say that judicial reviews are being driven by non-parties to a claim. Let us pause for a moment to ask whether that is necessarily a bad thing. Even if a judicial review is funded by a third party, it seems unlikely that that fact will have a bearing on the merits of the case, particularly in the examples I have just given. On the contrary, the sort of financial backers I have mentioned would be unlikely to support a case if it did not have merit.

Often the backer will have more expertise and moral authority than the individual litigant. We have talked about, for example, cases of elderly people being discriminated against in community care actions. Nicola Mackintosh talked about that in evidence. The supporter might be a member of the family, but it might be a charity that is trying to get justice for an individual and also have a positive effect on the actions of the local authority or whoever is discriminating against that individual. If an applicant is able to demonstrate that they have an arguable case and meet the rules of court on matters such as time limit and standing, they should be given fair opportunity to make their case and should not be obstructed from doing so by onerous requirements to provide what may constitute personal financial information.

The provision is all about discouraging litigation. It is not about transparency—that is not the principal aim. It is certainly not about transparency, because most of the information that will be required is not dealt with in these vaguely worded clauses that will be subject to secondary legislation. I bet the Minister that all this will do is spawn satellite litigation about the disclosure required and about the conflicting obligations of confidentiality.

The point of amendment 144 is to put discretion back into the system. The Minister will get tired of hearing about that, just as we got rather tired of hearing about low-level cases on Tuesday. Discretion is the key here. Judicial review is a judicial remedy that the courts have refined over a period of years, and the courts are the best place to deal with it. Discretion should be left to them. If a judge considers that financial information is necessary, he or she can ask for it. Making the provision of such information mandatory is bureaucratic and unnecessary. For that reason we oppose not just the part of the clause that I have discussed but the clause as a whole. I will say a little more when we come on to the clause 52, but I am going to try to keep the pace going reasonably this afternoon, and I have given our view on clause 51 and amendment 144.

Shailesh Vara (Conservative, North West Cambridgeshire)

It is good to see you in the Chair again, Mr Crausby.

Clause 51 introduces a requirement that any applicant applying for permission to bring a judicial review must provide information about how that application is to be funded, and the court cannot grant permission to proceed until that requirement is met. The effect of the amendment would be to enable the courts to disapply that requirement in whole or in part. Nothing is provided in it about the circumstances under which the court may disapply the requirement.

The Government are concerned by the potential for those not formally party to a claim not only to provide financial backing to a claim but to seek to drive the litigation for their own benefit, while avoiding financial liability should the claim fail. It should not be possible to hide behind a named claimant of limited means or a shell company in order to circumvent proper costs exposure, ultimately at the taxpayer’s expense. Clauses 51 and 52 address that real concern by providing for greater transparency in how judicial reviews are funded and by ensuring that all those involved in judicial reviews face a fair and proportionate level of financial risk. I remind the Committee that the judiciary themselves welcomed greater transparency about the financing of a judicial review in their response to the recent consultation. I also wish to make it clear that the clauses will not in any way alter or curtail the judiciary’s existing powers to award costs. Rather, they will ensure that the court is provided with an accurate picture of how a claim is funded so that its existing powers can be exercised more effectively.

I do not accept that the transparency requirement introduced by clause 51 is onerous. We will invite the Civil Procedure Rule Committee to set out the exact nature and extent of information required in rules of court, but we can be certain that the approach will be proportionate. An applicant will not be required to provide a forensic breakdown of their financial position, but will be expected to provide sufficient information for the court to know the actual or intended sources of funding for a claim. If finalised information is not available at the permission stage, the clause as drafted allows the claimant to provide details of the intended financial sources, which can be updated later should circumstances change.

Clause 51 will ensure that the courts are provided with the information necessary to ensure that judicial reviews cannot be brought in a way that limits a person’s proper costs exposure or circumvents the court’s powers to make them liable for public costs if they lose. I therefore respectfully ask the hon. Member for Hammersmith to withdraw the amendment.

Andrew Slaughter (Labour, Hammersmith)

We are in same position as before lunch, which in effect is that my opening speech was a response to the Minister’s closing speech. That is, we are none the wiser at this point. We have had the clause explained to us. I do not accept any of the reasons that the Minister has given, but I had already set out why I do not accept them, so I will adopt the same approach to clauses 51 and 52 as we did to clause 50. We intend to vote against clause stand part, but I beg to ask leave to withdraw the amendment.

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 145, in clause 51, page 53, line 21, leave out ‘likely to be available’.

David Crausby (Labour, Bolton North East)

With this it will be convenient to discuss amendment 147, in clause 51, page 53, line 43, leave out ‘likely to be available’.

Andrew Slaughter (Labour, Hammersmith)

I will be brief. The amendments address an evil in the clause that I have already identified, which is vagueness and uncertainty. The clause asks the court to consider not only information of a financial nature that is available, but information that is “likely to be available”. That type of loose and woolly wording creates the uncertainty that I believe is the Government’s true intention. They want to discourage anyone—from a philanthropic friend or relative through to an interested charitable organisation—from supporting a judicial review, and make it more difficult for meritorious cases to be brought forward. The amendments would deal with some of the defects in the clause, although not all of them. Those words are particularly pernicious and need to go.

Shailesh Vara (Conservative, North West Cambridgeshire)

Clause 51 introduces a requirement that any applicant applying to the court or tribunal for permission to bring a judicial review must provide information about how that application is to be funded, and the court cannot grant permission to proceed until that requirement is met.

Subsection (2) makes provision about the information that rules of court may require an applicant to provide. That information includes the source, nature and extent of any financial resources that are available, or are likely to be available, to the applicant for use in judicial review proceedings. Where the applicant is a corporate body that cannot demonstrate that it has the financial resources needed to meet its costs liabilities, rules of court may provide that information must be supplied about the body's members and their ability to provide financial support for the judicial review claim.

Subsection (4) inserts parallel provisions to those contained in subsection (2) on the provision of financial information for judicial reviews in the upper tribunal. The amendments would remove the power for rules of court to provide that an applicant must supply information about financial resources that are “likely to be available” to fund the claim. The effect would be that rules of court could specify only that an applicant must provide information about their current financial resources and not about prospective financial resources. That would mean that information about resources that the applicant knew were likely to become available in the future, and which could also be used to fund the claim, would not be available to the court.

The courts already have wide discretionary powers to award costs, including against third parties, where they consider it appropriate to do so. The changes introduced by clauses 51 and 52 will assist the courts in exercising those powers by equipping them with greater information on how claims are funded and directing them to consider that information in making costs awards.

I do not agree that prospective funding should be excluded from the information an applicant is expected to disclose, as the amendments are intended to achieve. It is vital that the courts are made aware of the full financial picture of a claim, including details of any financial resources that are likely to be available towards the costs of the litigation, which may be significant.

As drafted, clause 51 includes a safeguard to allow for changing circumstances. If resources previously disclosed to the court as likely to be available are later withdrawn or otherwise become unavailable, the claimant can update the court accordingly. Our changes will ensure that judicial reviews cannot be brought in a way that circumvents the court’s powers to make claimants liable for the defendant’s costs if they lose. Ultimately, they are intended to protect the public purse, so I ask the hon. Member for Hammersmith to withdraw his amendments.

Andrew Slaughter (Labour, Hammersmith)

The Minister makes my point for me. He says that the courts have full discretion as to costs. They are perfectly able to exercise that under the current regime, and they do not seek these additional clauses, which the Minister says will help but I say will hinder. We will vote against stand part, so I beg leave to withdraw the amendment.

Clause 52 - Use of information about financial resources

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 150, in clause 52, page 54, line 7, leave out ‘must’ and insert ‘may’.

David Crausby (Labour, Bolton North East)

With this it will be convenient to discuss amendment 151, in clause 52, page 54, line 13, leave out ‘must’ and insert ‘may’.

Andrew Slaughter (Labour, Hammersmith)

This clause continues and exacerbates the problems caused by clause 51, which is to say that it lays down mandatory rules for the use of financial information. As we have pointed out, the Opposition believe that clause 51 is disproportionate and bureaucratic, and we think clause 52 will make matters worse. A court is already able, if it considers it appropriate, to consider financial information and award costs. The amendments that we have tabled to this part of the Bill would either introduce discretion or remove uncertainty. Amendments 150 and 151 would do the former.

I hope that the questions I pose to the Minister will be helpful and that, if he can answer them, they will clarify the position. We believe that the clause is designed to scare off financial backers and prevent them from supporting a judicial review action. What happens if a charity obtains a grant from a third-party organisation for the purposes of pursuing litigation, capped at £5,000? Will the court be capable of enforcing a cost order against the donor for any sum more than that amount? What about a solicitor’s firm or law centre that acts pro bono for a claimant who is unable to secure legal aid? Would family members who support litigation brought by a vulnerable or disabled relative seeking to challenge withdrawal of services be affected? None of those matters are clear in the Bill, so clarification would be helpful.

It appears that as the Bill stands, there is a mandatory requirement to consider resources. In an unsuccessful case there is also an ability and encouragement to seek to recover costs from whoever is involved in the litigation, however tangentially. If that is not the case, I wait to hear the Minister say so. Unless he says so clearly, we must assume that that is likely to be the case, or that there is at least such a possibility. That will have a chilling effect on litigation. The amendments would at least restore discretion to the court so that it could act in a sensible manner, which would be of comfort to prospective litigants.

Shailesh Vara (Conservative, North West Cambridgeshire)

I will deal with a couple of the points that the hon. Gentleman raised. Judges already have powers to award costs against non-parties. In their response to the consultation, the senior judiciary supported the proposal that it should be mandatory for claimants to provide details of how a case is funded in order to assist the court in considering cost orders against non-parties.

On the hon. Gentleman’s comment about the vagueness of the information, details will be set out in court rules. A claimant will be expected to provide the court with sufficient information for it to know the actual or intended sources of funding for the judicial review. That may include proof of income or assets of an individual or company.

The exact parameters of the information that will be required will be set out in court rules, but it is certainly not the intention that the court should carry out lengthy financial investigations. However, claimants will need to provide sufficient information to inform the court of the actual or intended sources of funding for the claim.

Clause 52 provides that when making costs orders, the court or upper tribunal must have regard to the financial information provided by an applicant pursuant to clause 51. It must also consider whether to order costs against any person identified in that information.

The existing principles of when a costs award against a non-party will be appropriate will continue to apply. An award will be made only where a non-party funding the proceedings either seeks to drive or benefit from the litigation. Simply providing pure funding will, as now, not be sufficient for someone to be liable for costs.

The amendments would remove the obligation for the court or upper tribunal to consider the information in question when awarding costs, in essence setting up discretion for the court to disregard it. The Government do not agree that courts should be allowed to disregard the information.

We are clear that the changes introduced by clause 52 should not in any way curtail the judiciary’s discretion to award costs. The clause will not make it mandatory for the court or upper tribunal to make costs orders against those providing funding to a claim. Whether it is appropriate to make a costs order against a person not party to a judicial review will remain a matter for the court or upper tribunal to determine, considering the facts of the case and the information before it.

Directing the courts and upper tribunal to consider the full picture of financial resources will strengthen the courts’ ability to apportion costs appropriately and ensure that those involved in judicial reviews face a fair level of financial risk, while maintaining appropriate judicial discretion in relation to costs. I therefore hope that the hon. Member for Hammersmith will withdraw the amendment.

Andrew Slaughter (Labour, Hammersmith)

I am not persuaded, but I beg to ask leave to withdraw the amendment.

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 152, in clause 52, page 54, line 12, at end insert—

‘(1) Where the information in subsection (2) includes confidential information about the financial position of a natural person the Court may to the extent necessary to protect the confidentiality of such information—

(a) sit in private, and

(b) impose reporting restrictions.’.

I need say no more than what is stated in the amendment. It takes an instance where there is confidential information, and that confidentiality may need, in the opinion of the court, and certainly in the opinion of the applicant, to be protected. It asks that that be dealt with in private. I introduce this as an example of where the Government have not thought the matter through correctly. The Government have said that their ambition is to perhaps save money, but we say their ambition is to discourage judicial review actions from bring brought, and there may be unintended consequences. A perfectly legitimate supporter and backer might not wish to reveal their financial circumstances—I am sure that is the case for a lot of people—but there are issues, if they are a corporate body or even a charitable body, of commercial confidentiality.

The amendment would deal with such circumstances. Perhaps the Minister will explain what the rationale—if there is any—of the process will be.

Shailesh Vara (Conservative, North West Cambridgeshire)

The Government’s ambition is to ensure that meritorious claims proceed, and that where there are unmeritorious claims it should be taken into account that ultimately it is the taxpayer who subsidises them, so we wish to discourage unmeritorious claims and applications. There must be accountability for hard-working taxpayers’ money.

Andrew Slaughter (Labour, Hammersmith)

What is the relationship between an applicant and their financial supporters and the merit of the claim?

Shailesh Vara (Conservative, North West Cambridgeshire)

Perhaps I can give the example of a shelf company. People can sometimes hide behind the veil of a limited company, purchased for a relatively small amount, and then be free of liability in the event of costs being payable by them. We are trying to make sure that people think carefully before making applications for judicial review. We are trying to restore the balance to ensure that matters are proportionate when it comes to meritorious claims, and to ensure that costs are paid by those who seek to make unmeritorious claims.

Andrew Slaughter (Labour, Hammersmith)

Whatever the merits or demerits of off-the-shelf companies, what does that have to do with the merits of the claim?

Shailesh Vara (Conservative, North West Cambridgeshire)

The claim will speak for itself. We are concerned about people making unmeritorious claims in the knowledge that they will not end up having to pay the costs that they ought to, because the present system ensures that the taxpayer foots the bill. The amendment provides that the court or upper tribunal may sit in private or impose reporting restrictions to protect the privacy of a person’s financial information, which is required to be provided under clause 51. I appreciate the rationale behind the amendment, but I hope I can reassure hon. Members that the amendment is not necessary, given the court’s existing powers in this area.

The information before the court may well relate to the financial position of a natural person. However, under existing provisions and the civil procedure rules— rule 39.2, to be precise—the provisions set out in the amendment are already catered for.

Referring briefly to the detail of the rule, which sets up an exception to the general rule that a hearing is to be public, the exception applies if the hearing

“involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality”.

The court may also impose reporting restrictions necessary to protect that confidentiality.

I am clear that the changes should not in any way impinge on an individual’s right to privacy, particularly where details of personal finances are disclosed to the court or upper tribunal. However, for the reasons I have set out, I do not agree that the provisions the amendment seeks to include are necessary in achieving that end.

In line with current practice, any information made available to the court or upper tribunal that concerns personal finances, or is otherwise confidential, would not be made publicly available. In my view, any additions to the clause repeating this here would be surplus to requirement. I hope the hon. Gentleman will consider withdrawing his amendment.

Andrew Slaughter (Labour, Hammersmith)

I fail to see how the provision will in any way discourage unmeritorious claims, save that it will discourage a whole swathe of claims, some of which may be unmeritorious. That is always the Government’s approach to dealing with litigation. Their approach in part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 on conditional fee agreements and after-the-event arrangements was to get rid of everything. Their approach to discouraging claims to employment tribunals was to set fees at a prohibitive level. In other words, if they cannot do something with finesse and skill, they try to depress the level of litigation.

I do not accept what the Minister said. The merit of claims can easily be divined in the paper application, the oral hearing or, if necessary, the full hearing. We gave some figures this morning about the good success rate in judicial review actions. That is where the debate about merit belongs. We should not have this hole in the corner way of dealing with costs.

Shailesh Vara (Conservative, North West Cambridgeshire)

To be clear, our intention is to ensure that when a weak claim is brought, those who control and fund it should not be able to hide from proper cost liability. We are not saying that any kind of funding arrangement equates to a weak claim.

Andrew Slaughter (Labour, Hammersmith)

What I am saying is that the courts already have ample power to award costs as they wish. The only purpose of adding the clauses to the Bill is to discourage claims. I have made my point, so I beg to ask leave to withdraw the amendment.

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 153, in clause 52, page 54, line 16, leave out from ‘proceedings’ to end of line 16 and insert

‘and who has in fact provided such financial support.’.

As with clause 51, we say that if these clauses are to be introduced, they should be as clear as possible and should not leave contingent circumstances. The provision should therefore refer only to those who have provided financial support, not, as is in the clause, those who are

“likely or able to do so.”

That is clear and does not need to be explained again. I await what the Minister has to say.

Shailesh Vara (Conservative, North West Cambridgeshire)

Clause 52 provides that when making costs orders in a judicial review, the court or tribunal must have regard to information about the financing of proceedings provided by an applicant pursuant to clause 51. Subsection (3) means that when determining costs, a court or tribunal must consider whether to make an order against a person identified in the information provided under clause 51. That includes those who, although not party to the judicial review, are currently financially supporting the proceedings, or are likely to do so. Where an applicant is a body corporate unable to demonstrate that it is likely to be able to meet its liabilities, the court will be provided with information about its members and their ability to provide financial support.

The amendment would limit the duty on a court or tribunal to consider making a costs award against a person who is not a party to the proceedings to those who have actually provided support. That means that the court would not have to consider making a costs order against those likely to contribute to the funding of the claim or against members of a body corporate who are able to meet the company’s liabilities. That includes those sheltering behind off-the-shelf companies created simply to avoid the proper measure of liability. As we previously debated, clauses 51 and 52 are collectively designed to ensure that those who choose to be involved in judicial reviews face appropriate cost consequences in doing so. The court should consider all the information before it when making costs awards.

The Government do not agree that those likely to provide funding towards a claim, or a member of a company who is able to meet the funding liabilities, should be excluded from the court’s consideration of costs awards. It is imperative that the court or tribunal is presented with a full, transparent account of a claim’s financial resources in order to exercise its powers to appropriately apportion costs. Let me assure the Committee that the changes do not affect the important principle that costs are a matter for the judiciary. As now, the court or tribunal will not make a costs award against a third party which is simply providing funding towards a claim. Crucially, the third party funder must also be controlling the claim or seeking to benefit from it for their behaviour to be sufficient to warrant costs liability.

In my view, it should not be possible to bring litigation in such a way as to circumvent proper costs exposure. The changes introduced by clauses 51 and 52 tackle precisely this issue, ensuring that those driving judicial reviews assume a fair and proportionate share of the financial risk. I hope the hon. Gentleman will consider withdrawing his amendment.

Andrew Slaughter (Labour, Hammersmith)

I hope that the Minister is right and that the administrative court continues to be as robust in the future as it was in the past at finding its way through the maze and traps that the Government have set for it. According to the evidence of Mr Fordham, that is what it will indeed do and that is something that it has done over decades if not over the centuries. However, the Minister is dealing with the wrong issue. We are talking about the effect not on a robust judiciary but on some probably fairly shakily funded supporters of judicial review actions whom this Government wish to deter.

I beg leave to withdraw the amendment. We shall vote against clause stand part.

Clause 53 - Interveners and costs

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 154, in clause 53, page 54, line 31, leave out ‘not’.

David Crausby (Labour, Bolton North East)

With this it will be convenient to discuss the following:

Amendment 155, in clause 53, page 54, line 33, at end insert ‘if the court considers it appropriate to do so’.

Amendment 156, in clause 53, page 54, leave out lines 34 and 35.

Amendment 63, in clause 53, page 54, line 36, leave out subsections (4) and (5).

Amendment 158, in clause 53, page 54, line 36, leave out subsections (4), (5) and (6) and insert—

‘( ) On an application to the High Court or the Court of Appeal by a relevant party to the proceedings, the court may order the intervener to pay such costs as the court considers just.

( ) An order under subsection (4) will not be considered just unless exceptional circumstances apply.

( ) For the purposes of subsection (5), exceptional circumstances include where an intervener has in substance acted as if it were the principal applicant, appellant or respondent in the case.’.

Amendment 157, in clause 53, page 54, line 37, leave out ‘must’ and insert ‘may’.

Amendment 159, in clause 53, page 54, line 39, at end insert ‘if the court considers it appropriate to do so’.

Amendment 64, in clause 53, page 54, line 43, leave out ‘or (5)’.

Andrew Slaughter (Labour, Hammersmith)

The amendments, several of which stand in my name and that of my hon. Friend the Member for Barnsley Central, and two of which stand in the name of the hon. Member for Cambridge, who no doubt we will hear from in due course, have the common theme of discretion. That is not a new theme to this part of the Bill.

The issue of interveners—I do not intend to explain what is meant by intervention because I think all members of the Committee will be familiar with it—is not as central to the issue as some of the other clauses but is nevertheless important. We are dealing with those parties who seek to bring their professional skill, at the request of the court and circumscribed by the court, to the benefit not just of the parties and of the case but, more generally, to the benefit of the law and to the practice of the public body whose actions are under review. What is to object to in that? But the Government wish to discourage interventions and that is where we begin.

This group of amendments has a common theme. Amendment 154 negates the effect of the clause; it is the most striking amendment. Amendments 155 and 157 introduce an element of discretion. I will also speak to amendment 158, which is partly mirrored by amendment 63 in the name of the hon. Member for Cambridge, which attempts to mitigate the effect of the clause by taking out the requirement on interveners to pay costs. My amendment goes a little further in suggesting another formulation. I prefer my amendment—I think it is a better one—but I see that for the hon. Member for Cambridge, this is his one little foray into disobedience from the coalition, so we will let him have his day in court. I do not know at this stage where it will lead to in the real world or on Twitter, but let us give it a run around for half an hour and see where we end up. At least it puts a little uncertainty into otherwise rather routine proceedings.

Julian Huppert (Liberal Democrat, Cambridge)

The hon. Gentleman prefers his formulation to mine, which leaves things at the status quo. Why does he disagree with the status quo? What is his problem with that at the moment?

Andrew Slaughter (Labour, Hammersmith)

I do not disagree with the status quo. If the hon. Gentleman had been following the train of my thought throughout the proceedings, he would see that I aim to please all parties. I aim to give a range of options. I am personally very happy with simply deleting the clause. I am very happy with his formulation, but it may be that my slightly more finessed and considered formulation in amendment 158 will appeal more to the Minister, and we must be grateful for what we can get out of him.

Let me continue, although I do not want to go on too long. [Hon. Members: “Hear. Hear.”] I have the warm support and approbation of the Committee at last. Intervention usually entails submitting oral or written legal analysis for the court to consider. Under clause 53, if a third party seeks to intervene, it will be required to pay its own costs. It will also be required to pay any costs specified in the parties to the case that have been incurred as a result of the intervention. Only in exceptional circumstances will the court have the discretion to order otherwise.

Under the current system interveners cover their own costs and in return the court will not normally order the intervener to pay the costs of the other party. However, once again, the court has a wide-ranging discretion in relation to interventions. If they are superfluous, unnecessary or time-wasting, the court has what powers it needs to order costs. The effect of amendment 158 is to allow judges to award costs against interveners where the court considers it is just to do so, rather than requiring them to award them. It sets out that it will only be just in exceptional circumstances, which include when the intervener has acted as if it were the principal applicant in the case.

Interventions are largely considered to add value to the legal process. I will not quote the many authorities on that because the Minister would find that pernicious, but he will take my word for it that many authorities support that contention, including many members of the senior judiciary. At Second Reading, I think I quoted Baroness Hale of the Supreme Court, who said that she found overwhelmingly that interventions were helpful to the court. They are helpful because in an adversarial system, by definition, each side presents its own case. It presents those facts which it wishes the court to have in front of it. It is also the case, as we are often dealing with applicants who are of limited means, that not all the facts are put before the court. Interveners, exceptionally in an adversarial system, come with clean hands to the proceedings and, in a way entirely circumscribed by the court, will produce, usually, a written briefing—only oral evidence if that is what the court requires—of, say, 20 pages to put their arguments forward and specifically assist the court in reaching a decision. It may well be that an intervention shortens or clarifies proceedings and thereby saves costs.

I am anticipating what the Minister will say in response. I have no doubt that if all those things are true, it is very unlikely that an intervener would be made to pay the costs of other parties, but that is not the point. Many interveners operate with very limited resources and are subject to the oversight of a board of trustees. Several of the witnesses who gave evidence, not just Justice and Liberty but other organisations as well—forgive me if I cannot remember their names—said exactly that. They have to weigh up the risks to the organisation. A significant number are also charitable organisations, so they have an obligation to account for their activities to the Charity Commission. The threat of an as yet undetermined cost risk will act as a significant factor in whether to pursue a particular application.

We heard from a number of witnesses that they believe that the clause will effectively kill off intervention as far as the charitable sector and NGOs are concerned. Of course, the Government themselves are often an intervener. That will not be affected because the Government have unlimited public funds to do as they wish in such cases, and presumably, if they act inappropriately, to pay whatever costs they need to pay. Once again we see that not only are the righteous discouraged, but the Government are unimpaired in their ability to intervene in their own cause.

For those reasons it is pretty clear that the clause is misconceived—but I shall try to be as even-handed as possible. The Government have been carried away with their own purpose here, which is to suppress judicial review. They have extended it unnecessarily to an area where not only is there a genuine public benefit, but they will not save much time or money. They may well prolong proceedings, make them less meritorious and end up with worse results, which may themselves in the longer term have cost and other social consequences.

For all those reasons, the clause as a whole should go. If the hon. Member for Cambridge presses his amendment to a vote, I am content to support it, but I hope that in return he will support us when we say that the clause is not effective. I think that is the import of the hon. Gentleman’s intervention earlier. He said: “Let us go to the status quo”. There is another way of getting the status quo and that is voting against clause stand part.

David Crausby (Labour, Bolton North East)

It is appropriate for me to advise Members that this will be the right time for the clause stand part debate. If Members wish to speak on clause stand part, please speak now.

Julian Huppert (Liberal Democrat, Cambridge)

It is a pleasure to serve under your chairmanship, Mr Crausby, and to follow the comments of the hon. Member for Hammersmith. One particular comment by the shadow Minister struck me: that the Government have unlimited funds. One of the things that we have discovered over the past few years is that that is not the case. I hope he realises that. The Government definitely have limited funds. If he would like to correct what he said, I would be very happy to hear from him.

Andrew Slaughter (Labour, Hammersmith)

I am not going to correct what I said. I am going to say to the hon. Gentleman that perhaps he should take more interest in the fees that the Government pay to external counsel. Let me correct it to this extent: it appears that the Government have unlimited funds because when it is in the Government’s self-interest to intervene, prosecute or defend actions in the civil or criminal courts, money is no object. I do not agree with that at all. We should take a much keener look at the amount that the Ministry of Justice and other ministries are spending on external legal advice. We should do that as soon as possible. All I am saying is that it is not a level playing field.

Julian Huppert (Liberal Democrat, Cambridge)

I was about to ask whether the hon. Gentleman would let me intervene on his intervention, it was so long. We heard a clear acceptance that he believes that the Government have unlimited funds.

Let me turn to the matter at issue here. It should be clear and shared ground that judicial review needs interveners. Interveners can add a huge amount. That should be shared ground between everybody on the Committee. Baroness Hale said:

“interventions are enormously helpful... they usually supply arguments and authorities, rather than factual information, which the parties may not have supplied.”

That is absolutely right. It is why I am particularly concerned about this aspect of the Bill. It is worth noting that in other countries they are described as amicus curiae, friends of the court, which shows their role not as parties to it but as people assisting. There have been a number of cases in this country where people are asked by the court to intervene to help out. That is another important comment.

The Government’s impact assessment talks about the case for the changes. It states:

“Interveners may be less inclined to intervene voluntarily if they were more exposed to the costs their actions place on claimants and defendants.”

That is my concern. I do not want any of these to be less inclined to intervene voluntarily. That would cause a real problem. The issue is this: are interventions being done inappropriately? Are there abusive cases? We heard examples before of potentially abusive cases. I am not clear how many of those involved interventions. Can the Minister tell us how many interventions there have been in, say, the last five years that would be deemed abusive or inappropriate, things that he sees as time wasting and racking up costs, rather than genuine attempts to try to help the court? I do not see huge numbers.

I have spoken to a number of people about this. Shelter said that it intervened with great restraint. This is an important area of law and it had intervened in just five cases. One of those related to the failure of many local authorities to provide assistance to homeless young people and the Court of Appeal described its intervention as “conspicuously helpful”. I would be worried if there was a chilling effect which stopped it doing that. There is a suggestion that interveners should have a more proportionate interest in the outcome of proceedings. That is not the point. Shelter does not have a financial interest in this. It wants to try to help the court to reach the right conclusion.

It is worth saying—this relates to the amendment which the shadow Minister proposed—that this is not about their own costs. These organisations have not told me that they need their costs for intervening to be paid. That is not the issue at stake and that is what the original amendment would do. That is not the problem. They accept that they will pay to have a lawyer. It can take quite a considerable time to draw up the intervention to submit it, but it seems odd that they should have to pay for other people.

We can look at other examples. Liberty is a very well-known and active body. I should declare an interest as a former member of Liberty’s national council. In 2013, it made three interventions. That does not strike me as a massive problem that we need to deal with. I understand it has never had costs awarded against it because of the quality of what it has said. We heard of the case of Marper, an important case relating to DNA samples which I had a particular interest in. When Liberty was allowed to intervene, the judgment said that it brought the points that the case eventually turned on, which no one else had raised. That strikes me as the sort of thing we would want to ensure can continue to happen.

People do not simply wade in to intervene willy-nilly to do whatever they want. There are serious constraints. We heard from Angela Patrick and Martin Westgate about exactly how the process works. I will not read out the quotes but they are available at columns 103 and 120. It is not a simple matter. The judge has to give permission. The judge can say, “You want to intervene on these issues. I only want to hear on this particular one.” The judge has a huge amount to control. There is the issue not of their own costs but of other costs and the risk that they would face if they had to pay those. There are particular problems there which were highlighted by Martin Westgate at column 120. It gives a strange result.

If an intervener raises a point that is not very significant, it will not cost either of the parties very much to deal with it. But if they raise an issue that is really important and makes people look at things in a completely different way, if it is useful to the court, there will be more thought and more cost. It seems odd that an intervener would face the risk of paying more, the more important and effective their intervention was. That does not seem like the right way to go ahead. It is a huge risk to organisations—the risk of unquantified and unquantifiable costs. It will make it incredibly hard for some, particularly when it is not even merit-based.

In a typical civil case, people often face the prospect of paying the other side’s costs—I am not a lawyer, but I am sure that I will be corrected if I say anything wrong—but they know that that is dependent on their merits. If they have a strong case, even if they do not win, they probably will not suffer much, and if they have a rubbish case, they are more likely to. The clause as currently drafted would not work; the court already has clear powers.

Of course, the clause would affect seriously only organisations that have limited resources—the Shelters, the Liberty’s and the Justices—because large companies could risk £1 million in the unlikely event that they had to pay. They may think that they will be able to get away with it, but a smaller organisation will be inhibited by the clause because of the catastrophic risk of getting the wrong decision.

I would like to hear more from the Minister about the abuse that exists. The clause as currently drafted seems disproportionate to address that. I hope that there is a way in which it can be rewritten to tackle the abuse, which I hope we will hear about; obviously, if there is no abuse, we will not need the clause in the slightest. The clause needs to be targeted and not prevent the interventions that are so beneficial, whether they are voluntary or invited by the court. The clause is unacceptable as it currently is.

With regard to how exactly to fix it, I am not a lawyer and I do not have the resources of the Ministry of Justice. I hope that it will be possible for people to look at that. First, it should be made absolutely clear—perhaps the Minister could address this immediately—that, where people are invited to intervene, there should be no question whatsoever that they would be expected to pay costs for that. There is a separate question, on which he might want to comment, on whether in such a case—if the court asks them to help—people should get costs. There is a stronger case. I do not want to press that particularly, but certainly they should not pay anything.

In other cases, if there is some abuse, I hope it will be made clear that it is at the discretion of a court to base its decision on the merits and quality of the case. That is essentially what we have in the current system. If the courts are not using their discretion appropriately, perhaps the Minister could find some way to help the courts reconsider the way they go about that; there are processes for giving advice.

One possibility—this might not work, as I realise that there are legal problems with parts of it—is whether a decision can be made early as to whether an intervener would be subject to costs. An organisation would therefore at least know when they start that if they put the work in, they will not pay costs, or that it will be at their risk, and they may have to pay substantial costs. That would allow them to make a decision that would not have the chilling effect that I am concerned about.

I have spoken to both the Minister and the Secretary of State about the issue, and I thank them for their time. It would be fair to say that we have not reached a complete agreement, and I have yet to be persuaded by the current wording. I therefore feel strongly that it has to change.

I accept that the Minister cannot simply redraft everything in Committee, but I would like to have a clear commitment from him to look at the points that I and others have made and reconsider the matter in time for Report, so that we have a way to try to fix the problems. If I hear that commitment, I will accept it in good faith. He represents a seat in my county, so I am sure that he will do his best to satisfy my concerns. I will happily work with him on trying to come up with something that deals with the problems. If not, I will have to do what I suspect the shadow Minister prefers and press amendments 63 and 64 to a Division. However, I would much rather see the problem fixed than have the vote here, which I suspect would not be successful. I therefore hope that the Minister will accept my points and propose a way to fix the clause.

Valerie Vaz (Labour, Walsall South)

It is a pleasure to serve under your chairmanship, Mr Crausby. It is also a pleasure to follow the hon. Member for Cambridge, who I think speaks for quite a lot of us in the Opposition.

It is not clear what apparent mischief the Government are trying to prevent, other than to interfere with the workings of the court. We ought to remember the dictum, “Be ye ever so high, the law is above thee”, but the Government appear to be saying, “Be ye ever so high, the Government are above thee.”

We have to listen to evidence when we make our decisions. It is not about ideology, as the Lord Chancellor said, but about evidence and listening to what people say. It is worth remembering, as the hon. Member for Cambridge and my hon. Friend the Member for Hammersmith have said, that the court invites the interveners to intervene.

As I stated in my previous speech, it is not about numbers or costs, but about a curb on judge-made law. Our witnesses, all of whom have been involved in interventions—many of which were set up by the hon. Member for Cambridge—said that the courts welcome interveners and that, more often than not, they bear their own costs. The restriction in legal aid has led to an increase in the number of litigants in person. An intervener saves the court costs, because they can provide some of the information that the court requires but that the litigant in person cannot provide.

We have a wonderful, renowned legal system that uses the expertise of both our lawyers and our jurisdiction. People come from abroad to use it and we heard evidence that the system is worth something like £2 billion to the economy. With this clause, we undermine that at our peril. I urge the Government to remove the clause.

Julie Hilling (Labour, Bolton West)

It is a pleasure to serve under your chairmanship, Mr Crausby. Between us, we have a strong Bolton voice in the Committee today. The Committee may be shocked to learn that I am not a solicitor and that I never have been. I am a member of the Howard League and a member of trade unions, but sadly neither of them has spoken to me about the Bill.

I say that only because this morning Government Members seemed to be exercised about the fact that we might just have listened to and believed the experts who gave evidence to the Committee—woe betide anyone who sits on a Committee and listens to the experts! I am moved to speak because I believe that the clause is one of the nastiest bits of the Bill. I see this very much as a David and Goliath situation. From my perspective and that of my constituents, the Government have already curtailed legal aid and are now further curtailing access to justice. I understand why the Government want these changes. Whether we are a parent, an employer or a Minister, we never want our decisions to be challenged and I am sure that when Labour are in government, I will not want our decisions to be challenged either. However, politicians are not always right. I know that some might find that a dreadful shock, but, in truth, we are not. I found it particularly interesting that this morning Government Members were concerned that all these interventions were being made by terrible left-wing groups. I am left-wing and proud of that, but that does not mean that I am always right—mostly, but not always. That also does not mean that I am never wrong—rarely, but sometimes.

This issue is about people having access to justice and being able to go to judicial review—it is about David being able to stand up to Goliath. Those organisations that are prepared to support people are helping to hold the powerful to account; they are organisations that people—perhaps on both sides of the Committee—through subscriptions support in order to help those who are least able to find the financial means to take their cases to court.

Much of the Bill has been about secrecy and limiting access, but David does need help to fight Goliath. Those organisations that, by placing these financial barriers in the Bill, we are saying should not be part of our justice system are the part of civil society that ensures that society stays civilised. They are not a barrier to ensuring that the law is imparted properly, but part of ensuring that we have proper justice in this country, so that everyone, whatever their means, has access to justice.

The Government should be ashamed that they are taking these steps to limit access to justice further. They are further limiting that ability for the ordinary person to challenge the state to say, “Actually, you have got it wrong on this occasion.” We will have better law and better justice if we do not curtail access for the people who need it. I am most concerned about the little people at the bottom whom these measures will prevent from accessing justice. I hope the Government see reason and withdraw the clause. If they want to ensure we continue to have a civilised society, they must support access to justice. They must support David against Goliath.

Shailesh Vara (Conservative, North West Cambridgeshire)

I thank all contributors to the debate. A lot of views and genuinely held beliefs have been expressed, as well as one or two misconceptions. I want to put on the record where the Government are coming from. As I do so, I hope to ease the concerns that Committee members have raised.

At the outset, let me put two issues to rest. The Government recognise that interveners can add value and expertise to a case. That should continue. However, interventions should be made in the right cases, for the right reasons and after careful consideration. We must recognise that voluntary interventions have the potential to significantly increase the legal costs of a case. It is right that the parties who are expected to bear those costs and who may not have been in favour of the intervention have the opportunity to ask the court to order the intervener to pay the costs. Importantly, the court will retain its discretion not to award costs against the intervener in exceptional circumstances. The parties to the proceedings may still, as now, agree not to seek costs against the intervener.

Clause 53 will strengthen the cost rules for third parties that voluntarily apply to join a judicial review case as interveners. Interveners can include anyone who is interested in the issues being considered and seeks permission from the court to intervene in a case by filing evidence or by making representations. The amendments seek to modify the presumptions in clause 53 that the court must order an intervener in judicial review proceedings to pay their costs and the costs they cause a party to the judicial review by their intervention, unless there are exceptional circumstances that make it inappropriate to do so. Costs are the expenses that a party involved in litigation incurs—for example, from instructing a legal representative or having a scientist provide an expert witness report. The Government want to ensure that those who choose to become involved in judicial review proceedings face a proportionate exposure to financial liability.

My hon. Friend the Member for Cambridge raised a series of valid queries, which he has raised with me previously. One of his concerns is about the applicability of the clause to those whom the court invites to intervene. I am happy to confirm to my hon. Friend that it will not apply. Subsection (1) states,

“This section applies where…an “intervener”…is granted permission”

by the court

“to file evidence or make”

submissions on the case. The clause will therefore only apply when an intervener applies of their own volition to the court for permission to intervene, and the court grants it. Those whom the court invites to intervene do not make an application to intervene. Therefore, there is no grant of permission by the court. I hope that reassures him.

I am mindful that my hon. Friend raised a number of other concerns about the impact of the clause. I will gladly take this matter away and have another meeting with him next week. I will consider anything that he wishes to raise to meet his concerns and to see whether anything can be done before consideration on Report.

Our intention, as with the clauses on the capping of costs and cost liability of those who are not party to a judicial review, is to encourage claimants, their legal representatives and others involved in judicial review proceedings to consider more carefully bringing or intervening in the case. We want there to be a rebalance of what has, in my view, become a risk-free enterprise for many organisations and for which the taxpayer is shouldering the burden. We are seeking to set a sensible position on precisely when the taxpayer is expected to foot the bill for others’ decisions. This is not purely a question of quantum but also one of the good stewardship of public finances. To achieve this, the clause establishes two presumptions in respect of voluntary interveners in judicial reviews. First, that they will pay their own costs of intervening unless there are exceptional circumstances that make it appropriate for a party to the judicial review to pay those costs. Amendments 154 to 156 seek to modify this first presumption so that the court may ask the parties to pay the intervener’s costs if the court considers it appropriate. In the Government’s view, this moves away from the current position where the normal approach is that interveners pay their own costs and it is only in exceptional circumstances that they would not. This clause seeks to put that on a statutory footing. These amendments would water down the current position, potentially placing a larger burden on the defendant and thus the taxpayer, and the claimant, over which neither could exert any control.

The second presumption is that interveners will, where an application is made by a party, be ordered to pay costs which the court considers have been incurred by that party in the judicial review as a result of their intervention, unless there are exceptional circumstances when it is inappropriate to do so. Under this second presumption, set out in subsections (4) and (5), if the intervener, for example, raises additional complex legal or factual points that are not germane to the case, the claimant or defendant may apply for their costs in addressing those points—for example, counsel’s time—to be covered by the intervener. If the court considers those costs were incurred as a result of the intervention it will make the appropriate award.

It is with this second presumption that the remainder of the amendments are concerned. The amendments adopt three approaches. Amendments 63, 64 and 158 would remove the presumption entirely. I regard amendment 64 as consequential to amendment 63. Amendment 158 goes further and introduces a new presumption that the court may only award the party’s costs against an intervener in exceptional circumstances, which can include where an intervener is acting in substance as if it were a party. Amendments 157 and 159 would set out discretion for the court to award the party’s costs against an intervener where it is appropriate to do so, although it would leave reference to exceptional circumstances—so I am not entirely clear how the hon. Member for Hammersmith expects that to be interpreted.

I hope that I can reassure hon. Members about the effect of subsections (4) and (5). They do not mean that interveners will be paying all the costs of other parties in every case where they choose to intervene. Rather, the court will only be asked to consider it on the application of a party that has been exposed to additional costs because of the intervener. For example, if the intervener raised additional complex legal or factual points that are not germane to the case, the claimant or defendant may apply for their costs in addressing those points—for example, counsel’s time—to be covered by the intervener. Or indeed, if the intervener in essence acted as if it were a party to the proceedings, it would be right for it to bear the costs that it had caused the parties. It remains the case that the court will ultimately decide whether to award those costs against the intervener.

There will be cases when it is not appropriate and the intervener will not be asked to pay the costs of the party who has made the application. First, an award would only be made if the court considers the costs were incurred as a result of the intervention. There is no question of an intervener being made to meet even a single penny of the costs which one party has caused the other. This is about the financial impact on the parties which the intervention has. Secondly—

Julie Hilling (Labour, Bolton West)

I am trying to follow what the Minister is saying. It seems to me very likely there will be additional cost if an intervener intervenes, because they are going to bring knowledge and expertise that the claimant does not have. Therefore, there will be additional cost. While I am on my feet, can the Minister say how often he thinks the Government will apply for costs from the intervener?

Shailesh Vara (Conservative, North West Cambridgeshire)

The hon. Lady says that the intervener would bring knowledge which the other parties do not have. If a judge feels that an intervener is required to add that extra knowledge, then it is open for the judge to invite an intervener. The costs of that intervener and the consequences will not be met by the intervener. The circumstances we are talking about are where somebody or an organisation volunteers to become an intervener and the costs that emanate as a consequence of that. An award would be made only if the court considers the costs were incurred as a result of the intervention. There is no question of an intervener being made to meet even a single penny of the costs which one party has caused the other. This is about the financial impact of the intervention on the parties.

Julian Huppert (Liberal Democrat, Cambridge)

I thank the Minister for his earlier comments. I look forward to working with him to try to fix this clause. It seems to me that there will always be some costs as a result of an intervention. At the very least, for a lawyer to read only a few pages would generate a fee. Can he say more about what he means by exceptional cases? Courts already have this discretion. What sort of case would count as exceptional? Does he consider this would happen extremely rarely?

Shailesh Vara (Conservative, North West Cambridgeshire)

I hope that my hon. Friend will agree that every case rests on its merits and it is for the judge and the court to decide what would fit in those circumstances. There will, of course, be rules that will be made and put into place to assist in that process.

Secondly, where the party is put to expense by the intervener, the court will only award reasonable costs. There is no question of defendants or claimants being able to use this clause as a way of having interveners pay for the most expensive legal advice available where their arguments do not merit that.

Where there are exceptional circumstances, the court may decide not to make an order. As I said earlier, rules of court will include criteria for the court to consider in assessing whether there are exceptional circumstances and will provide clarity in respect of potential costs of interventions at the point the intervener is considering whether to intervene. The rules will be made in the usual way, that is by the Civil Procedure Rules Committee, and it would be wrong for me to second guess the detail of the approach at this point. However, we can be absolutely confident that the criteria will comply fully with the overriding objective of the Civil Procedure Rules, which is to enable the court to deal with cases justly and at proportionate cost.

These safeguards reflect the principle that an intervention should not usually cause additional costs to the claimant themselves, or to the usually taxpayer funded defendant. We expect interventions to be made in a way which minimises the additional costs and this clause reinforces that. It remains open to the parties and the intervener to agree cost liability before the intervention; for example parties may still, as now, at the start of a case, agree not to seek costs against an intervener.

I am clear that we do not want to prevent interventions. The Government share the view that interveners can add value to a case, bringing expertise that the court and the parties may not have. The court retains the ability to invite a person or body to intervene, in which case the presumption in this clause will not apply. But for those who seek permission to intervene, it is right that they have a proportionate cost liability in doing so. The intervener has the choice to intervene and incur costs, whereas the defendant and ultimately the taxpayer do not.

The changes introduced by clause 53 are aimed at ensuring that interventions are only made where necessary and that the parties do not bear the burden of a decision to intervene over which they have little control. I hope the Committee will be reassured by the safeguards in how the clause will operate in practice. I therefore ask the hon. Gentleman to withdraw the amendment.

Andrew Slaughter (Labour, Hammersmith)

I have two brief comments on what the Minister has said. He has repeated the fallacy in the Government’s approach that appears throughout the consultation document, in which they say that the Government

“considers that those who choose to become involved in litigation should have a more proportionate financial interest in the outcome and this should extend to interveners.”

The problem is that interveners do not choose; they are chosen. They may volunteer, as the Minister puts it, but it is entirely a matter for the court to decide whether and to what extent they become involved. His approach fundamentally misunderstands the nature of interventions, which are not about financial interest, but about helping the court to reach the correct legal answer. By exposing interveners, many of which are charities or non-governmental organisations, to uncertain and prohibitively high costs, the Government will significantly reduce the capacity of third parties to lend their expertise to the judicial review process. He must know that that is the case, and he appears to be content with that.

The other matter I wish to raise relates to exceptional costs. Although cases of obvious time wasting by third party interveners are easily addressed under the current rules, how will the court be able to determine whether additional costs are attributable to the intervention? If an intervener acts within the bounds of permission to intervene, with written or oral submissions made only as directed by the court, will they avoid costs? On the language of exceptional circumstances as posed in the Bill, it would appear not.

The Minister attempted to give comfort by saying that the intervener will not have to pay the inter partes costs that are unrelated to the intervention, but that is self-evident. We are still talking about what could be the substantial costs of other parties that the intervener has to pay, and which most of the interveners that we have talked about this afternoon will simply not be able to take the risk of incurring.

I enjoyed one part of the debate: the little dance that we have become used to between the Liberal Democrats and the Government. It goes like this: on an ancillary clause to the proceedings, a point is made by a Liberal Democrat Member asking for a concession or discussion. The Minister graciously says, “Oh, of course we will provide that,” and then the Member decides to not pursue or to withdraw the clause and further discussion takes place, and—who knows?—some nugatory or insubstantial concession will be made in the future. Then, when we have got all our tweets and our blogs in place, and we have done everything to appear to be the friend of civil liberties—the little guy against the state—nothing has actually changed in the great Tory firmament.

Shailesh Vara (Conservative, North West Cambridgeshire)

May I gently refer to one or two entries in Hansard from this Committee? I like to think the hon. Gentleman would agree that there have been some occasions when I have been generous to him with his amendments, and have said that I would go away and consider them further.

Andrew Slaughter (Labour, Hammersmith)

I will go this far with the Minister: he has done better than his predecessor. I remember when the hon. Member for Huntingdon (Mr Djanogly) was in his place and the right hon. Member for Carshalton and Wallington (Tom Brake) was playing the role now played by the hon. Member for Cambridge. The hon. Member for Huntingdon gave the concession too early and had to withdraw it and then give it back again—so at least they are getting the movements in the dance correct now. That is definitely a step up.

I have identified one thing—I always try to learn from debates—which is that the Minister is more sympathetic to amendment 63 than to the other amendments that have been tabled. I do not know whether I understood correctly what the hon. Member for Cambridge said, but if he is pressing the matter to a vote, so be it. If he is not, I will be pleased to put it to the vote. I do not wish to proceed with the other amendments, but with the leave of the Committee, I wish to vote on amendment 63, and I beg to ask leave to withdraw amendment 154.

Clause 54 - Capping of costs

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 161, in clause 54, page 55, line 22, leave out subsection (3).

Clauses 54 and 55 are the final part in the jigsaw of the downfall of judicial review. That is a slightly strange phrase, but there it is. The effect of clause 54 is that the court will be entitled to make a costs capping order if it decides that the judicial review would constitute public interest proceedings and if the applicant would reasonably happily withdraw from the proceedings in the absence of the order.

In a case between a public authority and a private individual or even a small NGO, there will normally be very significant disparity in resources. Most people could not afford to take on the Government or a public authority if they could be liable for the costs of the case. In recognition of the chilling effect of a costs liability for public law challenges, the court’s development of a protective costs order would make legal challenges a viable option in many cases.

The problem with the clause is that it exposes again, in a different way from the previous clause, the possibility of those who bring judicial review having to pay unlimited costs. The idea of a protective costs order was developed by the courts to see that justice is done and to ensure a level playing field between applicants and respondents. The amendment would remove subsection (3), which states:

“The court may make a costs capping order only if leave to apply for judicial review has been granted.”

Again, that is a fairly crude way of trying to cut off the possibility of judicial review at an early stage.

For the avoidance of doubt, I will say that we oppose the clause and, as always, are attempting to improve it, first of all by extending protective costs to the leave stage. If the Government are prepared to go some way with us we will consider our approach; if not, we will vote against the clause.

Valerie Vaz (Labour, Walsall South)

Again, we have heard that the Government are putting through measures when judges are already doing what they need to do. It is another example of the mighty Executive trying to curb judicial freedom and cow the judiciary.

It is up to a judge to decide on costs. They hear the evidence, and look at the complexities of the case and the behaviour of the parties. They look at everything in the round when dealing with costs. It is not possible to put into legislation everything that judges take into account when making orders for costs.

The clause is simply another way of the Government trying to tell the judiciary what to do. The judgment in the Corner House case set out what a judge must take into account for a protective costs order. I will go through that now. The order may be made at any time during the proceedings. The court has to look at these factors:

“The issues raised are of general public importance…the public interest requires that those issues should be resolved…the applicant has no private interest in the outcome of the case…having regard to the financial resources of the applicant and the respondent and to the amount of costs that are likely to be involved, it is fair and just to make the order…if the order is not made, the applicant will probably discontinue the proceedings and will be acting reasonably in doing so.”

In addition, the order is in the court’s discretion. Judges are doing that now. There is no need for the clause at all.

Subsection (3) states that the court may make an order

“only if leave to apply for judicial review has been granted.”

We heard from a number of expert witnesses that they do a lot of work up front. It is unfair for them not to be able to get their costs when they have done that work and to have to wait until permission is granted.

Subsection (9) is more sinister. It states:

“The Lord Chancellor may by regulations amend this section by adding, omitting or amending matters to which the court must have regard when determining whether proceedings are public interest proceedings.”

That is very chilling, Mr Crausby.

I urge the Government to look again at deleting the clause. It is unnecessary and will set up a constitutional conflict, as many of our witnesses explained. The judiciary has a way of dealing with the issue and there is no need to tamper with the work it does. When discussing the previous clause the Minister talked about matters being dealt with through the Civil Procedure Rules Committee. That is already being done, so there is no need for clause 54.

Many witnesses referred to the curbs on judges in the Bill as having a chilling effect. If we do not delete the clause it will have a huge effect on the way in which our judicial system operates.

Shailesh Vara (Conservative, North West Cambridgeshire)

I am a little concerned about some of the words that have been used, such as “chilling” and the like. We believe that this measure is very necessary, as I hope will become clear from my remarks.

Clause 54 establishes a codified costs-capping regime in judicial review proceedings under which a court may make orders that remove or limit the liability of a party to pay another party’s costs incurred in bringing or defending a judicial review. This regime replaces that developed by the courts in case law for the making of such orders, which are commonly referred to as protective costs orders. Clause 54 should be read alongside clause 55, which sets out the factors that the court must take into account in approaching the decision of whether to make a costs-capping order and the terms of any such order if made, and clause 56, which enables judicial reviews relating to the environment to be excluded from the codified regime so that the costs position in relation to such cases may be considered separately.

These clauses form part of the wider judicial review measures in this Bill, which are intended to address, among other things, the pursuit of weak cases which overburden public services and delay the progression of meritorious judicial reviews. Ordinarily in litigation if a party loses a claim the usual costs rules apply, which means that the losing party must pay the other party’s costs of bringing or defending the case. This means that if a judicial review claimant was unsuccessful, they would usually be required to pay all of the defendant's reasonable costs of successfully defending the claim.

Valerie Vaz (Labour, Walsall South)

I mentioned in respect of the Corner House judgment the tests that the court has to look at and the fact that an order for costs may be made where it is “fair and just”. Can the Minister point out where clause 54 says it is fair and just to make this order?

Shailesh Vara (Conservative, North West Cambridgeshire)

If the hon. Lady will be a little patient, I will come to the Corner House case a little later. If the court makes a protective costs order, a pre-determined limit is set on the amount that the claimant would have to pay the defendant if the claim fails. The successful defendant is then able to recover their costs from the claimant only up to the amount specified in the order and must meet the remainder themselves. The Government are concerned that the usual costs position can be, and is, circumvented too often through the present use of protective costs orders. As I said in debating the earlier clauses on the costs liability of interveners and those who are not a formal party to the judicial review, I want to ensure that those who bring judicial review do so with proportionate exposure to financial liability and properly consider the merits of bringing the case before doing so. The clauses creating the costs-capping regime are part of this.

Andrew Slaughter (Labour, Hammersmith)

I wonder whether I am understanding correctly. Is the Minister saying that judges in the administrative court are not doing their job properly and are granting protective costs orders when they should not do so?

Shailesh Vara (Conservative, North West Cambridgeshire)

I am not saying that. It is for the judges to do their job. They are independent, as they have always been. As I said earlier, the judiciary is independent. We are putting in place legislation, which is a part of the constitution as well. We are fulfilling our constitutional part, as Parliament, in making the laws and the judges fulfil their constitutional role.

The current regime for protective costs orders derives from the case of R (Corner House Research) v. Secretary of State for Trade and Industry. The Court of Appeal considered that the NGO Corner House, the claimant in the case, should exceptionally be protected from being liable for the defendant’s full costs because if not, the issues of public importance that arose in the case would have been stifled at the outset and the courts would have been powerless to grant the relief sought. The court also restated the principles for considering whether such orders should be granted, including that the issues are of general public importance; that the public interest requires that the issues should be resolved; that the financial means of the claimant mean an order is fair and just; and that without such an order the claimant would probably discontinue the proceedings.

However, over time an increasingly flexible approach has been taken, such as through the discarding of any requirement that a case be “exceptional” and the dilution of the consideration given to the potential benefit derived from the claim by the claimant. The expanding approach that the court has taken to costs-capping orders has meant that such orders can be made before a case has even been granted permission to proceed with judicial review, and made for interim purposes with little or no consideration of the merits of the claim. A weak claim may therefore benefit from costs protection.

Clause 54(3) is designed to deal with the issue by preventing the court from making a costs-capping order until it has granted permission to proceed with judicial review. Amendment 161 would remove this provision. First, I would like to assure the Committee that this subsection does not affect a claimant’s ability to make an application for a costs-capping order before permission has been granted. As now, the claimant can include an application for such an order as part of, and at the same time as, the application for permission to proceed to judicial review. Also, this provision does not prevent the costs-capping order from covering costs related to the permission application. If, once permission has been granted, the court considers that a costs-capping order should be made, the order will, as at present, cap the claimant’s liability to pay costs incurred by the defendant at the level specified in the order, whether those costs were incurred before or after the grant of permission.

That ensures that costs-capping orders are made only in, and taxpayers are asked to subsidise only, cases that have genuine merit, by providing that an order may not be made unless and until the court grants permission to proceed with judicial review. That means that a claimant is, properly, on risk as to the costs of a weak application, but it does not mean that the costs-capping order cannot, where the case has sufficient merit for permission to be granted, protect the claimant from the costs incurred by the defendant in responding to the application for permission. Let me be clear: once a case is granted permission to proceed to judicial review, if the court awards a costs-capping order, the protection—or, to put it another way, the capped costs—will include costs incurred in preparing for, and the costs of, the permission stage.

Clause 54 is concerned with ensuring that those involved in judicial reviews are not unduly insulated from the costs of that process. In most cases, the general rule should apply, with the losing party paying the winning party’s costs, and taxpayers’ money should be used to subsidise only judicial reviews that have merit in genuine public interest cases.

I therefore ask the hon. Member for Hammersmith to withdraw his amendment.

Andrew Slaughter (Labour, Hammersmith)

I will withdraw the amendment, but not because the Minister has satisfied us in any way on this issue. It is pretty clear from what he has said that the objective of this provision is severely to curtail the use of protective costs orders, which is one of the methods developed in the administrative court to allow meritorious judicial reviews to go ahead. The amendment deals with pre-permission stages. Costs can be significant at those stages and are likely to be more significant in the light of some of the other provisions that the Government have introduced in the Bill. This is a web of measures, each of which supports the others and all of which have this chilling effect. I beg to ask leave to withdraw the amendment.

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 162, in clause 54, page 55, line 25, after ‘judicial review’, insert ‘or any intervener’.

I do not know whether this is an omission by the Government or what. At the moment, it is possible for interveners to make applications for protective costs orders, but I understand that if this clause goes through, that will not be possible. The amendment, by inserting the words “or any intervener” into the clause, would give interveners the same costs protection as the applicant in the case—indeed, any party in the case.

Shailesh Vara (Conservative, North West Cambridgeshire)

Clause 54 will allow a costs-capping order to be made only on application by the applicant for judicial review. Amendment 162 is designed to extend the protection of costs-capping orders to those who intervene in judicial reviews, even though they are not parties to the proceedings. I expect that the reason for the amendment is the new presumption that clause 53 introduces, requiring interveners to be responsible for costs that they have caused a party to incur as a result of their intervention. I believe that extending the protection of costs-capping orders to interveners is a step too far from the current practice. I am not aware of such orders, under the current scheme in England and Wales, being made in favour of an intervener. Indeed, that does not seem consistent with the status of the intervener as a non-party to the proceedings.

On the principles as set out in the Corner House case, a protective costs order could be awarded if the applicant

“will probably discontinue the proceedings and will be acting reasonably in doing so.”

This does not in principle cover an intervener who has no ability to discontinue the proceedings. And it would not sit easily with the current practice of interveners being responsible for their own costs and not being liable for those of the parties to the case.

When an intervener is involved in a judicial review their role will often be to assist the court and provide evidence of the wider context of the issues being determined in the individual case. Interveners should take care not to act as a quasi-party. If they have such an interest in an individual case, it would be more appropriate for them to be joined as a party to the proceedings, in which case they will be able to apply for a costs-capping order in their own right.

As I said in the debate on clause 53, interventions should be made in a way that does not incur additional costs for the claimant themselves or to the—usually—taxpayer-funded defendant. There are safeguards set out in clause 53 that render unnecessary this amendment to clause 54. When an intervener is required to pay the costs of a party under clause 53, the court will only award reasonable costs. I reiterate the important point that there is no question of defendants or claimants using this new provision as a way of having interveners pay for the most expensive legal advice available where the arguments do not merit it.

Clause 53 does not require the court to make an order in every case for the intervener to pay the costs they have caused a party to incur. It is only on application from a party for a cost order that the court will consider it. If the court considers there are exceptional circumstances that make it inappropriate for the intervener to pay those costs, it remains within the discretion of the court to decline to make the order. There is no need for clause 54 to be amended in this way. It is clear that there are sufficient safeguards set out in clause 53 to provide the necessary protection for interveners being asked inappropriately to carry the liability for costs that the intervener may have caused the party to incur. I therefore ask the hon. Gentleman to withdraw his amendment.

Andrew Slaughter (Labour, Hammersmith)

The point has been made. I beg to ask leave to withdraw the amendment.

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 163, in clause 54, page 55, line 30, leave out

‘or likely to be available’.

David Crausby (Labour, Bolton North East)

With this it will be convenient to discuss the following:

Amendment 165, in clause 55, page 56, line 41, leave out ‘or may provide’.

Amendment 166, in clause 55, page 57, line 1, leave out ‘or may provide’.

Andrew Slaughter (Labour, Hammersmith)

These amendments are similar to those tabled to clauses 51 and 52. The Government are adding an extra element of uncertainty by looking not only at the financial resources that are provided but at those which may be provided. We think that is unhelpful and creates uncertainty. It is an additional discouragement. I say no more, other than to remind the Minister that I do not believe he dealt with the point of “fair and just” in the Corner House case raised by my hon. Friend the Member for Walsall South.

Shailesh Vara (Conservative, North West Cambridgeshire)

As regards the “fair and just” point, fair and just is in Corner House but not in the Bill. The clause provides that a costs-capping order should be given when the case is in the public interest and subject to other criteria. We do not wish to add a further barrier to obtaining an order, such as “fair and just”.

The effect of these amendments would be to limit the information that an applicant must provide, and that the court must consider, to financial support already received, excluding details of any prospective financial support, however likely that support is to be forthcoming. I do not agree that prospective funding should be excluded from the information an applicant is expected to disclose, or that the court should not be asked to consider it when making the order. It is vital that the courts are made aware of the full financial picture of a claim, including details of any financial support that is likely to be available towards the costs of the litigation, which may be significant. That allows the court to assess whether a claim, although notionally brought by a claimant of limited means, is in fact sufficiently well resourced not to require subsidy by way of costs protection.

Committee members will recognise that in the Corner House case, where costs-capping orders were developed, those requesting such orders were required to provide details of their financial means to ensure that any award that the court made was fair and just. That should be reflected in the new regime to re-establish firmly the principle, as the original Corner House case required, that costs-capping orders be granted only to those who genuinely need them and who without such an order would reasonably discontinue the judicial review because the financial risk was too great to continue.

There is a safeguard to allow for changing circumstances if the resources that the applicant thought would be available do not materialise. Court rules, as set out in clause 54, will allow for that. If resources previously disclosed to the court as likely to be available are later withdrawn, or otherwise become unavailable, the claimant can update the court accordingly. The Government consider that to be the appropriate way round rather than removing any requirement to provide information about likely funding and requiring the claimant to inform the court of any support that becomes available, which is what the amendments would do. The need for such support may well be removed by the making of a costs-capping order.

Valerie Vaz (Labour, Walsall South)

Some of the words from the Corner House case are in the Bill. Why is the “fair and just” test not in the Bill?

Shailesh Vara (Conservative, North West Cambridgeshire)

We considered the matter carefully and we spoke with various stakeholders. Under the circumstances, we felt that our wording was the best way to achieve what we want. The Government want to ensure that costs-capping orders are granted appropriately and fairly. Taxpayers’ money should not be used to subsidise cases where sufficient funding is available, or likely to be available, for the claimant to meet any costs should the judicial review fail. Clauses 54 and 55 are designed to do that, and to ensure that all those involved in judicial reviews face a fair and proportionate level of financial risk in the case. I therefore ask the hon. Gentleman to withdraw his amendment.

Andrew Slaughter (Labour, Hammersmith)

We disagree on the measure, but I beg to ask to leave to withdraw the amendment.

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 164, in clause 54, page 56, line 10, leave out subsections (9), (10) and (11).

David Crausby (Labour, Bolton North East)

With this it will be convenient to discuss amendment 168, in clause 55, page 57, line 12, leave out subsections (3), (4) and (5).

Andrew Slaughter (Labour, Hammersmith)

We see this provision as a mini Henry VIII clause. We have a proper Henry VIII clause coming up later in the Bill, so I will save my comments for that. At this stage, I will simply say that we object to the idea that the Lord Chancellor should have free rein to amend the provisions of the clause by regulation.

Shailesh Vara (Conservative, North West Cambridgeshire)

Clause 54, alongside clauses 55 and 56, provides a new regime for costs-capping orders that will replace the regime currently contained in case law. Proceedings will be public interest proceedings if, and only if, the issue being argued is of general public importance; it is in the public interest for that issue to be resolved; and the proceedings are likely to provide an appropriate means of resolving it. Clause 54 also makes it clear that the court must be satisfied that if a costs-capping order is not made, the claimant would discontinue the case and would be acting reasonably in doing so.

Clause 55 sets out the way in which a court should approach the decision of whether to make a costs-capping order, and the terms of such an order if it is made. Like clause 54, it sets out a non-exhaustive list of factors that the court should take into account when asked to make a costs-capping order in an individual case, and the terms of that order, to ensure that that cost protection is granted only in the right cases and at the right level.

Subsections (9), (10) and (11) of clause 54 create a power for the Lord Chancellor to amend by statutory instrument the matters to which a court must have regard when determining whether proceedings are public interest proceedings for the purpose of awarding a costs-capping order. Subsections (3), (4) and (5) of clause 55 give a similar power to the Lord Chancellor to add, amend or remove matters that the court must have regard to when considering whether to make a costs-capping order and the terms of the order. Amendments 164 and 168 seek to remove those subsections, and accordingly to remove the power to amend the two non-exhaustive lists. I believe that would remove the flexibility that is necessary in considering such matters.

It is clear from case law that the principles on which a costs-capping order should be made have developed over time, and it may be the case that the principles set out here may need to change to reflect different considerations on what might be or not be in the public interest.

The provisions in those subsections give us the opportunity to respond quickly, without the need for primary legislation, should it become necessary to amend, add or remove the matters that the court should take into account when considering such orders. That does not mean that Parliament will not be able to consider the new matters that the court needs to take account of. Any amendments made under this power will first be debated before Parliament under the affirmative resolution procedure before they can be brought into force.

I believe that approach is sensible and allows us to respond quickly and effectively. I would therefore ask the hon. Member for Hammersmith to consider withdrawing the amendment.

Andrew Slaughter (Labour, Hammersmith)

I beg to ask leave to withdraw the amendment.

Clause 55 - Capping of costs: orders and their terms

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 167, in clause 55, page 57, line 10, leave out ‘must’ and insert ‘may’.

I can be brief. Clause 55, which is consequential on clause 54, sets out the way in which the Court of Appeal will approach decisions whether to make a costs-capping order. We have made it clear that we do not support that regime. The amendment, if the clause did go ahead, would allow discretion. I think I have said enough about discretion so far today not to have to explain myself again.

Shailesh Vara (Conservative, North West Cambridgeshire)

Clause 55 requires that if the court decides to make a costs-capping order limiting an unsuccessful claimant’s liability for the defendant’s costs, then under the new regime it must make also an order limiting the defendant’s liability for the claimant’s costs if the judicial review succeeds. The amendment would seek to alter that position by substituting “must” for “may”. Such an order—often called a cross cap—is frequently made or agreed in practice already, so this is not an entirely new principle. However, I believe that in future cross caps should be made in all cases where a costs-capping order is made in favour of the claimant.

Just as a claimant should have protection from high costs in appropriate cases, the public body defendant—and therefore the taxpayer—should also have cost protection in line with the general principle in civil litigation that costs overall remain within reasonable limits. While a public body does, of course, have more resources at its disposal than a private individual, those public resources are not unlimited and I believe that costs in judicial review proceedings should be more proportionate and balanced between the claimant and the defendant.

Our intent is to set a sensible limit on the extent to which the taxpayer is asked to foot the bill for costs incurred by claimants. The overriding objective of the civil procedure rules is to enable the court to deal with cases justly and at proportionate cost. The subsection requiring the court to set a mandatory cross cap will help to ensure that the costs that are incurred, and that the taxpayer is asked to subsidise, are reasonable and proportionate. It is not right that claimants should expect the taxpayer to subsidise their decision to obtain the most expensive legal advice available.

I reassure hon. Members that the mandatory cross cap does not erode the court’s discretion to make decisions on costs. The clause does not prescribe fixed amounts for the cap on either party. That will be for the judge’s discretion, based on what is reasonable in an individual case, and will naturally vary from case to case, as well as between the claimant and defendant in a given case. The clause will also provide sufficient flexibility to take into account any imbalance in the financial positions of the claimant and defendant. The clause is intended to ensure that the costs incurred are reasonable and that the taxpayer is not asked to subsidise a disproportionately large bill. I ask the hon. Member for Hammersmith to withdraw his amendment.

Andrew Slaughter (Labour, Hammersmith)

We do not withdraw our objection, but I beg to ask leave to withdraw the amendment.

Clause 56 - Capping of costs: environmental cases

Andrew Slaughter (Labour, Hammersmith)

We will not oppose the clause, but I have a question for the Minister. According to the explanatory notes:

“Clause 56 enables provision to be made excluding from the codified regime established under clauses 54 and 55 judicial reviews about issues which, in the Lord Chancellor’s opinion, relate entirely or partly to the environment.”

The Minister can see why we do not object to the clause if the rest of the regime is to stand, but the explanatory notes go on to say that:

“This clause does not require all cases which may be argued to relate to the environment to be excluded.”

Does that mean we are awaiting clarification through regulations, or does it mean that the Minister has something in mind as to which type of case will or will not be included? If he cannot give me an answer now, he may answer in writing or subsequently. Clearly, the clause arises not from the Government’s good will but from the provisions of the Aarhus convention. We would like the exemption to apply as broadly as possible, and certainly to all environment cases. If that is not to be the case, we would like to know the Government’s intentions.

Shailesh Vara (Conservative, North West Cambridgeshire)

I am happy to give the assurance that the hon. Gentleman seeks. If I do not answer his questions now, I am happy to write to him. Clause 56 enables environmental judicial reviews to be excluded from the revised costs-capping regime established by clauses 54 and 55. Clause 56 creates a power specifically to exclude judicial reviews on issues that relate entirely or partly to the environment. Costs of environmental judicial reviews are at present governed by a separate regime established by rules of court in response to issues arising from the Aarhus convention and directives, particularly the public participation directive, which implements certain aspects of the convention in EU law.

Regulations are the appropriate place to set out such matters, rather than specifying them in the Bill. That will allow us to respond quickly should it become necessary to amend or add to the type of cases that may or may not be considered to be environmental cases, thereby enabling an appropriate balance between certainty and adaptability. Clause 56 is intended to ensure the continuation of a cost protection regime adapted to environmental cases.

Clause 57 - Leave of court required for certain planning proceedings

Bob Neill (Conservative, Bromley and Chislehurst)

I beg to move amendment 5, in clause 57, page 58, line 3, at end insert ‘or the Court of Appeal’

David Crausby (Labour, Bolton North East)

With this it will be convenient to discuss the following:

New clause 1—Leave of the court required for Listed Building Act proceedings—

‘(1) Section 63 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (proceedings for questioning the validity of other orders, decisions and directions) is amended as follows.

(2) In subsection (3) after “section”, insert “relating to anything other than an English matter”.

(3) After subsection (3) insert—

“(3A) An application under this section relating to an English matter may not be made without the leave of the High Court or the Court of Appeal.

(3B) An application for leave for the purposes of subsection (3A) must be made within six weeks from (as the case may be)—

(a) the date on which the order is confirmed; or (in the case of an order under section 23 which takes effect under section 25 without confirmation) takes effect, or

(b) the date on which the action is taken.”.

(4) After subsection (5) insert—

“(5A) When considering whether to grant leave for the purposes of subsection (3A), the High Court may, subject to subsection (6), by interim order suspend the operation of the order or action the validity of which the person or authority concerned wishes to question, until the final determination of—

(a) the question of whether leave should be granted, or

(b) where leave is granted, the proceedings on any application under this section made with such leave.”.

(5) After subsection (6) insert—

“(6A) In this section “English matter” means—

(a) an order to which this section applies which is made by—

(i) a local planning authority in England, or

(ii) the Secretary of State, or

(b) action to which this section applies which is on the part of the Secretary of State.”.

(6) After subsection (7) insert—

“(8) References in this Act to an application under this section do not include an application for leave for the purposes of subsection (3A).”.’.

Bob Neill (Conservative, Bromley and Chislehurst)

It is a pleasure to serve under your chairmanship, Mr Crausby. We move on to a separate and quite discrete part of the Bill. I hope that the amendment and new clauses will be less controversial and perhaps more technical than some we have discussed so far.

The amendment and new clauses address the arrangements for the treatment of appeals and applications to the High Court against planning permission in various circumstances. That includes a number of subsidiary or ancillary planning orders, including those that are frequently made by the Secretary of State in relation to recovered appeals, enforcement notices or other important matters.

The background to the amendment and new clauses is a separate policy from those that we have talked about hitherto. That is the desire, which I think is shared by Members of all parties, to speed up the planning process both in the application stage and before the courts. I think that is common ground. Clause 57 seeks to do that, as part of a bigger package of issues.

Most practitioners have welcomed the recent establishment of a planning court, with its scope for a specialist judiciary to deal with its own set of rules and procedures on planning cases, which can be complicated, technical and potentially expensive and time-consuming. The range of work involved varies from substantial matters of national significance, through medium-sized but still economically and socially significant cases, to cases that may be controversial and involve points of law, but may not of themselves be complex. It is important that the new court, which is welcomed by practitioners as much as by legislators, has a chance to work on the best possible footing. The amendment and new clauses are put forward in that spirit and with the support of practitioners in the Planning and Environment Bar Association. I particularly want to thank Richard Harwood, QC, who helped with the drafting and who has consulted widely with colleagues. I also have the support of the Law Society, which I will come to later, so this is not a political group of amendments. It is a technical and practitioner-driven group.

The overall objective, which I hope we have encapsulated in the explanatory notes, is to rationalise the regime on leave to bring applications and time limits across a number of planning applications that are often interlinked. It is common for a major development to require planning permission in the normal sense, but it also frequently needs listed building consent or other types of technical consent, such as hazardous substance consent, so there are frequently parallel applications. If there is a challenge to the High Court, subtly different regimes apply to the treatment of those applications. That difference can, in practice, add to costs and delays for applicants and for the courts.

We are seeking to use the sensible measure that is clause 57 as an opportunity to standardise other ancillary matters so that the court can develop its rules and procedures on a better basis. Frequently, as I will explain when I go through the new clauses, the differences seem to come about purely by the happenstance of different Acts of Parliament brought in at different times and incorporated as we have gone along, and with language that has changed over a period of time. There is no deep rationale, and we are trying to resolve that.

I will explain how we intend to achieve that overall objective through the amendment and new clauses. On amendment 5, clause 57 as it currently stands would put what we might term a leave filter into applications to challenge in the High Court. That is a sensible proposal, in my judgment, because it seeks to weed out unmeritorious applications. The one issue that we have at present is that frequently, as I am told by practitioners, circumstances can arise in which an application is made to the High Court and refused, but then granted on renewal of the application to the Court of Appeal, and is ultimately successful. There is quite a bit of case law on planning and environment reports where that is the case.

As things stand, we already have a leave filter in section 289 of the Town and Country Planning Act 1990. Perhaps I should explain that there are two important sections in the 1990 Act with which we are concerned: sections 288 and 289. Clause 57 will align the leave provisions of the two. That is sensible. We suggest that it is also sensible for people to be able not just to apply to the High Court for leave but to go directly to the Court of Appeal. That fits in with the sort of leapfrogging process used in other circumstances and will mean that the parties can be saved the costs and court time of a preliminary application. It seems consistent with the policy that we all want to see in such cases.

Practitioners tell me that broadening the leave requirement would probably affect 10 to 20 cases a year, usually cases involving listed building consents and challenges to development plans, and that in about half those cases, a substantive hearing will be avoided. One might say that that does not sound like a very large number, but the cases can be quite significant. The important thing to remember is that the number of planning High Court cases is small. About 150 statutory applications and appeals are made a year. In parallel, because the system is mixed, there are about 180 judicial reviews a year. As will become apparent in our discussion of the amendments, at the moment, in some cases, a statutory application and a judicial review must be brought in parallel to deal with what is essentially one set of issues and one decision.

Although the number is not large, it is worth bearing in mind that the planning chamber will be small, and a limited number of judges will be experienced in and qualified to deal with such cases. Therefore, listing can be a considerable issue in planning cases in the High Court. Delays in listing while a suitably experienced and available High Court judge or a deputy judge with experience in planning work is found are a problem for practitioners and parties.

Removing the need for interlocutory commission-type hearings will therefore be of significant benefit in such cases. It will save time for the courts as well as for applicants. Due to the nature of the developments sometimes involved in such cases, delay can prove expensive. It is not purely about court time and legal costs; it is also frequently about the economic cost of delay to important schemes. Sometimes—I think of major school and education redevelopments that I have encountered, or health facilities as part of a mixed package—there is a social cost as well to listing issues delaying facilities from coming on stream. Anything that removes essentially administrative and technical applications from the court lists is to be welcomed, and that is what we seek to do. Amendment 5 would remove a small but significant number of applications for leave that would otherwise be duplicated by their being heard first in the High Court and then renewed in the Court of Appeal.

Moving on to the new clauses, we seek at the same time to remove some anomalies that have crept into the system. I will first deal with new clauses 1 to 4, because they all take a similar approach. Essentially, we are saying that the leave requirement for section 288 applications should be extended to other, similar applications under the planning legislation: listed buildings consents under section 61N of the Town and Country Planning Act, consents under the Planning (Hazardous Substances) Act 1990 and development plans under the Planning and Compulsory Purchase Act 2004. Frequently, those are brought in parallel with the original application, and it seems sensible that the same regime should apply to all of them. Otherwise, in those and some of the other cases to which I am referring, the parties have to issue separate proceedings. Although the court will eventually, no doubt, consolidate the hearings, there is a cost in lawyers’ court fees and so on in issuing separate proceedings, and a cost to the court in having to consolidate them administratively. A decision has to be taken to do that. If all those applications could be done as a one-stop shop, that would save court time.

New clause 5 deals with a separate anomaly. It would allow for a decision to be quashed in part. At the moment an enforcement notice, for example, is either quashed or allowed, and then a condition is attached to the permission that is granted. That is perfectly sensible. However, the condition is sometimes wider than the legal power permits. As things stand, it is not possible to remove the offending condition that was too widely drawn and leave the rest of the decision as it stands. We are seeking to enable a decision to be quashed in part, so as to remove an unlawful part of a condition, rather than having to quash the whole of the planning permission and go back and start again because of what might be a technical mistake—that goes back to some of our earlier discussions. It seems a pointless exercise and a waste of time and money to have to do that when a fairly easy remedy is to say, “You have 85% right, 15% wrong. We will strike out the 15% and leave the rest as it is.” That is the remedy sought in new clause.

New clause 6 would deal with the issue of costs. We have the odd situation that there is a statutory regime under sections 288 and 289 of the Town and Country Planning Act in relation to the substantive decision, but the issue of cost cannot be challenged through that statutory route. It has to be challenged by separate but parallel judicial review proceedings. The same problem arises—people have to take out separate applications and get them consolidated. The costs can often be significant in such cases. New clause 6 would enable those matters to be dealt with together. At present, the award of costs has to be brought by judicial review, as was held in the case of Botton v. Secretary of State for the Environment, even if there is a section 288 application being brought at the same time. Again, we want to get a one-stop shop.

New clause 7 would deal with a point that looks even more arcane and may cause problems. At the moment, there are different time limits for bringing a raft of applications that often relate to the same issue and consolidating them. I will not go through them all, but we have listed them. Some periods for bringing proceedings run from the date of the decision, which in practice means the day after, and others include the date of the decision. For example, under the 1990 Act, section 287 and 288 applications and judicial review proceedings are in the former category. They run from the date of the decision, whereas challenges to a development plan and the statutory time limit for planning judicial reviews, which are often brought at the same time as a statutory challenge, come into the second category.

Those time limits are short, and I am not complaining about that, but it means that by the time people have got their act together in evidential and legal terms, a challenge tends to be brought at the end of the time limit. That is particularly the case if the challenge is brought by third parties, who may be people such as we talked about earlier. The risk of missing the deadline or confusing deadlines is real. It seems sensible to have a common approach and to use the phrase

“from the day after the decision”.

That is the formulation in clause 57, which imports new sections into the 1990 Act. Under clause 58, applications for leave

“must be made within six weeks from the date”.

If the language is standardised, there will be no scope for confusion by any party. That is particularly important for an individual claimant or small charity that may not be familiar with that arcane law.

New clause 8 would allow the grant of permission or consent to be challenged in an enforcement notice. It is intended to change the procedure. At the moment, there is a different test of standing for who can bring an application in relation to different types of applications. Again, that is immensely confusing, so we wish to apply a general standing test for the definition of who is the aggrieved person, adopting and standardising the well known test in section 288 of the Town and Country Planning Act. That would end the current position of appellants—local planning authorities and persons interested in the land—having to challenge by using the different procedure in section 289 or bringing judicial review. It would provide a one-stop shop and enable the challenge to include any grant of planning permission, consent or a lawful development certificate. That would avoid the current confusion of having to commence section 288 and 289 proceedings to challenge a grant of planning permission or an LDC, and would also avoids duplication in listed building cases.

The new clause would change the nomenclature of the proceedings from “appeal” to “application”. That would simplify the procedure, again on the basis of section 288 claims, as they are made under one part of the rules and appeals are made under a separate part. In future, the same part of the rules would have to be looked at in both cases. That would enable all cases to have the same rules procedure and the same leave requirement in court.

Hidden in the new clause is the removal of two slightly arcane arrangements. At the moment, there is statutory provision for a requirement to be placed on the Secretary of State to state a case. As far as anyone at the planning Bar can work out, that has never happened, and there are no court rules on how to state a case in such circumstances. The provision therefore seems rather pointless, particularly as nowadays, to ensure that a decision is compliant with the European convention on human rights, the decision maker in planning cases must give a reason anyway. The need to state a case, which was the historical reason for the provision, is therefore redundant because reasons must be given in any event. Finally, the ability of the Secretary of State to state any question of law arising in the course of an enforcement notice appeal is removed because it to is redundant—it is covered elsewhere and therefore never used. To a degree, such changes are tidying up, but they have more practical importance than people might think.

I can give the example that clinches it for me. We want to stop unmeritorious appeals and speed up the process. There are provisions in the Bill that would filter out unmeritorious challenges to a planning permission, but if someone wanted to seek to frustrate and delay the development for unmeritorious reasons, they could still do so by challenging the listed building consent. There would be no way to prevent them from pursuing an unmeritorious challenge to the listed building consent right to the very end, running up all the costs and delays. There would be nothing we could do about it. The purpose of clause 57 would be circumvented. That is why the professional bodies support our proposed changes.

To give some flavour of what is involved, we are probably looking at significant cost savings. People might say, “Should we not let the planning court get up and running and see what happens?” My response would be that it is sensible to put in place the statutory basis on which the planning court will then draw up its procedures. I know all too well from my time as a Minister that a legislative vehicle in primary legislation is required to make changes. If we do not use this opportunity, it might be a number of years before another piece of planning legislation comes along and we are able to put it right.

I will not pretend that every bit of the wording of the new clauses is perfect. I have had helpful discussions with the Minister and his colleagues, and I deliberately set out the detail of the new clauses at more length then I might have otherwise so that the Committee and the House are aware of the applications. I hope that, as the Bill makes its way through Parliament, we can make progress on removing the anomalies I have drawn attention to. I therefore look forward to hearing the Minister’s response. He knows that I have discussed the matter with the Minister responsible for planning, and I think we are all agreed on the objectives. The issue is how we reach them technically.

Andrew Slaughter (Labour, Hammersmith)

I am grateful to the hon. Gentleman for explaining so clearly the effect that his amendment and new clauses would have, and he was prescient in saying that they are not controversial either in amending or adding to the Bill. The Opposition see his proposals as attempts—no doubt the Minister will tell us whether they are successful—to rationalise, speed up and codify provisions relating to planning proceedings. We welcome them and are certainly not going to oppose them.

Almost the last point that the hon. Gentleman made was about whether we are doing too much at once, and that would be my own concern. For the avoidance of doubt, we will always support attempts to speed up, rationalise and make more efficient processes where that is the actual aim and the changes are not in fact disguises for something else or would not have unintended consequences. That is why we support the planning court and did not oppose the transfer of immigration cases. It is also why, broadly speaking, with the caveats we set out earlier in the week, we support leapfrog appeals.

We discussed the possibility of a report earlier. There are many ways in which judicial review and related proceedings can be sped up. This emphasises the points we made about the rest of part 4: there is plenty going on in the pipeline which can be genuinely administratively efficient without the need for the punitive clauses that we discussed earlier today. In the interests of time and in view of what the Minister said, I leave it there. We will not oppose these clauses and amendments.

Shailesh Vara (Conservative, North West Cambridgeshire)

I thank my hon. Friend the Member for Bromley and Chislehurst for his amendments. As he and the hon. Member for Hammersmith have said, these are technical provisions that seek to tidy up and harmonise procedures across the planning regime. There appears to be some merit in some of the points that my hon. Friend raised, but I hope he will appreciate that we need time to give them proper consideration.

Briefly, amendment 5 has the potential to frustrate the objective of clause 57, as mischievous applicants could simply create delay by lodging appeals with the Court of Appeal. The view is that this does not create unfairness, as the threshold for permission is a low one. New clauses 1 to 4 add a permission stage to various other planning-related challenges in England. However, clause 57 seeks to address a particular issue, which has been identified by the judiciary, consulted upon and received general support. There are unlikely to be many challenges under the provisions that these clauses address. There is a view that it is better to start with section 288 of the 1990 Act, see how it works and decide what other amendments might be appropriate in the longer term. However, we will give careful consideration to my hon. Friend’s amendments, likewise to new clauses 7 to 8.

If my hon. Friend is happy, I can give an assurance on the record to meet him again. Perhaps he and I can meet with some of my officials, as well as officials from the Department for Communities and Local Government, to see if there is a way forward on these issues. On that basis, I hope that he will consider withdrawing the amendments.

Bob Neill (Conservative, Bromley and Chislehurst)

I am grateful to the Minister for his positive response t. The exact formulation of the wording is not important. The aim is to solve the issues that we might identify. On the basis that we can have discussions and return at the latter stage if need be to find an appropriate route—whatever it may be—to deal with these matters, I am happy to beg leave to withdraw the amendment.

New Clause 21 - Drugs for which prisoners etc may be tested

Jeremy Wright (Conservative, Kenilworth and Southam)

I beg to move, That the clause be read a Second time.

David Crausby (Labour, Bolton North East)

With this it will be convenient to discuss

Amendment 170, in clause 60, page 59, line 27, at end insert—

‘( ) An order under this section bringing into force section(Drugs for which prisoners etc may be tested)may appoint different days for different areas.’.

Jeremy Wright (Conservative, Kenilworth and Southam)

We move on to some new clauses which cover a variety of topics. New clause 21 creates a power for the Secretary of State to specify in secondary legislation drugs that are not controlled under the Misuse of Drugs Act 1971 for which prisoners can be tested in addition to controlled drugs. The effect is to expand the scope of the mandatory drug testing programme currently operated in prisons and young offenders institutions, so that prisoners can be tested for non-controlled drugs as well as controlled drugs under the Misuse of Drugs Act.

The provisions started life as a private Member’s Bill promoted by my hon. Friend the Member for Stourbridge (Margot James). I take this opportunity to thank and pay tribute to her for the efforts she has made to bring this subject to the attention of the House. We seek here to legislate in the way that she sought to, as part of this Bill.

The MDT programme is an important part of our response to drug misuse in prisons. I believe it works and it has been shown by an ONS study to be an effective measure of drug misuse in prisons. However, for the MDT programme to achieve its purpose, it must test prisoners for the drugs they most commonly misuse. Historically, those have been substances often misused in the community, predominantly heroin and cannabis, so the existing drug-testing power in section 16A of the Prisons Act 1952 was sufficient. However, as prisons have improved the effectiveness of their measures to restrict the supply of drugs and as drug misuse trends in the community and in prisons have changed, there has been a growing tendency among prisoners to misuse other substances, such as prescription medicines and new psychoactive substances, many of which are not controlled under the 1971 Act.

Robert Buckland (Conservative, South Swindon)

I am grateful to my hon. Friend for highlighting that rather alarming trend to create a black market in prescription drugs. I warmly welcome the new clause, but does he agree that more work needs to be done to look radically at how prescription drugs are administered in prisons, so that we may arrive at a position in which we can truly say that our prisons are drugs-free?

Jeremy Wright (Conservative, Kenilworth and Southam)

I agree with my hon. Friend that we also need to look at how prescription medication is dispensed in prisons, because we often see it dispensed legitimately to one prisoner, but finding its way into the hands of another. Prisons of course do a great deal already to restrict that flow, but he is absolutely right that what we are discussing is only part of a wider set of actions that we must take. He is also right in the context of the broader problem—the misuse of drugs that are not in and of themselves illegal, which concerns me, Her Majesty’s chief inspector of prisons and, I am sure, the rest of the Committee. It is creating difficulties for our prisons’ operations and our prisoners’ rehabilitation.

More and more, the MDT provision in section 16A of the 1952 Act is becoming insufficient; it needs broadening. The clause therefore creates clear statutory powers to enable testing for those emerging drugs under the existing MDT programme. We will then be able to use the programme to deter prisoners from misusing the drugs, refer those who are to drug treatment services and measure the extent of the misuse. Finally, I should make it clear that under the new clause the Secretary of State will specify in the Prison Rules 1999 and the Young Offender Institution Rules 2000 the non-controlled drugs known to be misused by prisoners to enable testing for them.

Amendment 170 supplements the new clause and enables it to be commenced in different areas of England and Wales at different times. Drug misuse patterns in prisons are not consistent across the country and, as such, it might not be necessary to introduce drug testing for particular drugs in all prisons at the same time.

The measure is, I hope, seen to be a straightforward and common-sense one, which will make our prisons safer, better protect the public and deter prisoners from misusing non-controlled drugs. I hope that the Committee will support the new clause.

Dan Jarvis (Labour, Barnsley Central)

We have no objection to the new clause.

Jeremy Wright (Conservative, Kenilworth and Southam)

I am grateful.

New Clause 20 - Offence of sending letters etc with intent to cause distress or anxiety

Angie Bray (Conservative, Ealing Central and Acton)

I beg to move, That the clause be read a Second time.

It is a pleasure to be serving under your chairmanship, Mr Crausby. This is the first time in the four years that I have been a Member of Parliament that I find myself moving a new clause to a Government Bill, so please bear with me if I put a foot wrong, or even a tiny toe. It is also slightly daunting to be proposing a change to the law, however minor, before a Committee full of lawyers and legal experts, but I intend to forge ahead nevertheless. I do not need to explain to you, Mr Crausby, or to such august company in the Committee what an either-way offence is, but I will lay out my reasons for wanting specifically to change offences under the Malicious Communications Act 1988 from summary only to either way.

My interest was first aroused by a visit to my surgery in Ealing by constituents who were desperately trying to understand why justice had failed to be done for their young daughter, who had been receiving wholly unwanted explicit sexual text messages from the husband of the mothers’ best friend. Such was the kick that he apparently got from sending those messages to her that he sometimes sent 30 a day.

That went on for a year or so. The young girl did not tell anyone, because she knew he was married to her mum’s friend, and did not want to upset anyone. She carried that torment on her young shoulders alone. Finally, the school got in touch with the parents to find out why their daughter’s work was going rapidly downhill. Was there a problem they could discuss? What was wrong with her? My constituents asked their daughter, but she said nothing was wrong.

Then, after a gap over the Christmas period, when the man started texting all over again, she finally broke down, utterly traumatised, and told everyone. He was arrested and admitted to all the texts he had sent. The Crown Prosecution Service looked at the texts that the girl had kept on her phone—she had deleted some, because they were so awful. The CPS recognised them immediately as grooming texts. The sender was 42, by the way, and she was just 14, although I understand the texting started when she was 13.

The CPS wanted, unsurprisingly, to get him, if it could, with the toughest sentence possible. As I understand the matter, it could not charge him under section 15 of the Sexual Offences Act 2003, which makes it an offence to groom a child and then meet them for the purposes of sexual activity, because there had been no such meeting of that kind. Instead, it went for the attempted offence, under the Criminal Attempts Act 1981. However, the judge deemed that there was too great a distance as to time or subsequent necessary actions for what happened to constitute an attempt. He had to dismiss the case, although he refused to award the defendant his costs. The only other avenue would have been to prosecute under the Malicious Communications Act 1988, but by the time the man had walked free from the Crown court the CPS could not proceed under that Act, because, as with all summary-only offences, there was a six-month time limit, and it had run out.

That is where I came in. Surely, the girl’s parents said to me, there must be a simpler way of taking people like that man to court. He had admitted to exceptionally malicious communications with their daughter; yet the only options available were either to prove that he had committed a serious crime, which they could not do, or go for a far lesser offence that did not really reflect the seriousness of what he had done and that was, in any case, time limited.

I promised to see whether there was a gap that could helpfully be filled. Not being well versed in the law, I sought the views of the police and the National Society for the Prevention of Cruelty to Children and took advice from several colleagues who have a legal background, including my right hon. Friend the Attorney-General. I was warned that I should not attempt to go for too much. The danger in creating new offences, I was told, is that they invariably bring unforeseen consequences, which scoop up many more who are not the intended target.

I hope that Committee members will agree that what I propose—simply making an offence under the Malicious Communications Act 1988 an either-way offence—is a small change that could have beneficial consequences. It would get rid of the six-month time limit and allow magistrates the discretion to decide whether individual cases are appropriate for their court, or so egregious that they should be sent to the Crown court, where a tougher sentence would be available.

As I have explained, my main motivation was the plight of my constituents, who came to see me after their bitter disappointment about what happened, or rather did not happen, with respect to their daughter. However, it is entirely possible that the change I propose would enable other types of malicious communication to be treated more severely, where appropriate, than is currently allowed. I am thinking in particular of the ever-increasing bullying that takes place on various social networks. Some of that is, of course, little more than teenagers having a go at each other. However, there are other occasions when the bullying is appalling and has a serious impact on victims—ruined lives and even suicide.

I would like to think that what I propose could help to act as a deterrent, and as an avenue for tougher sentencing than is now available. I hope that I can get the Committee’s support for the new clause. I believe that I am proposing a reasonable and workable change to the law.

Andrew Slaughter (Labour, Hammersmith)

I can be very brief. I have the greatest sympathy for the family and the victim in the case that the hon. Lady has set out. The Opposition have no intention of opposing the new clause, which, as she says, would be a relatively small change to the law. I have no issues with what she has said, but I have one or two questions for the Minister.

First, while the case cited is particularly horrid, it is only one case, and one is always reluctant to change the law on the basis of one case. Will the Minister set out whether he believes that that type of case, or other cases that will be caught by the new clause, is prevalent statistically, not just anecdotally? The Government need to establish that before they support the new clause.

Secondly, what is the Government’s rationale for supporting the new clause? It might be the same as the hon. Lady’s; it might be different. Is it about bringing such matters before a jury, or about the issue of time limits, which is dealt with here? Is it about stronger sentencing powers? What is the basis for their support?

Finally, what is the anticipated effect of the new clause, in terms of number of cases per year and therefore costs? We always have to look at that when we either invent new offences or extend sentencing powers. I am sure that the Minister has thought about that.

Robert Buckland (Conservative, South Swindon)

I am sure that the Minister will answer the questions posed by the hon. Member for Hammersmith. Having discussed the matter with my hon. Friend the Member for Ealing Central and Acton, I know that the police are concerned. A number of cases that have come to their attention have not been prosecuted because, first, the six-month time limit came into play and, secondly, the offence has not gone on. The case referred to by my hon. Friend quite clearly had sexual connotations, but it had not gone on to form the choate offence of grooming under section 15 of the Sexual Offences Act 2003. Interestingly, we will have another debate about that later, under a new clause tabled by the hon. Member for Rotherham, which will be a helpful adjunct to what we are discussing.

Clearly, there is a growing trend, which we all see in our case load and from our experience as Members of Parliament, of the use of social media, not just as a benign way for people to get together, but as a malign force for many young people in our society. Gone are the days when, with the close of the school gates and the return to home, the young person can feel safe. That does not happen anymore. The internet is a public place, and that young person is vulnerable whether they are indoors or outdoors.

Social media happen in an instant. A course of conduct can be established in minutes as opposed to hours or days, which would have been the case before social media’s widespread use. It therefore seems eminently sensible for the law to evolve to meet a growing problem in our society.

It may well be that the new clause will not be the end of the matter; we will have to return from time to time to look at the way we have developed our law in relation to communications between individuals. However, at this stage, the new clause, which I note enjoys the Minister’s support, seems to be a proportionate and appropriate response, not just to one case, but to a growing body of evidence from the police regarding the frustration that they and the investigating authorities feel when detecting and prosecuting what is quite clearly criminal conduct that we do not tolerate in our society.

Any measure that protects young people and that allows them to speak out—let us not forget that the case concerned a young woman who did not feel able to speak out for a year, meaning that the boat was missed in terms of the six-month limit—has got to be in the interests not just of justice, but of the young people we are trying to protect. We must remember that, in the context of sexual offences and offences with a sexual overtone, it can often take a long time for someone to come forward, because they might feel embarrassed. If that person is young, they might feel a sense of guilt. Having heard the facts from my hon. Friend the Member for Ealing Central and Acton, I have no doubt that that was one of those classic cases. The new clause seems eminently sensible. I am happy not only to have put my name to it, but to have spoken in support of it today.

Jeremy Wright (Conservative, Kenilworth and Southam)

May I begin by congratulating my hon. Friend the Member for Ealing Central and Acton not just on the persuasive way in which she has made the case to the Committee today but, as she mentioned, for the even more persuasive way that she made the case to ministerial colleagues before the Committee’s deliberations. As she explained, new clause 20 seeks to make the offence under section of the Malicious Communications Act 1988 a triable either way offence and provides that the maximum sentence of imprisonment on conviction of indictment would be a term not exceeding two years. The hon. Member for Hammersmith quite rightly asked me to set out the Government’s rationale for supporting the new clause and I am happy to do so.

The offence under section 1 of the Malicious Communications Act of sending certain items with intent to cause distress or anxiety covers a wide range of communications and articles, including letters, writing of all descriptions, electronic communications, photographs and other images in a material form, tape recordings, films and video recordings. The offence is currently a summary-only offence. As my hon. Friend said, that means that prosecutions can only be brought in the magistrates courts. The maximum penalty for the offence is currently a fine of up to £5,000, or a custodial sentence of up to six months, or both, and prosecutions for the offence must be brought within six months from the time it was committed.

As my hon. Friend explained, her interest in this offence arises primarily because it might be used to prosecute adults who send sexually explicit texts or e-mails to children in an attempt to groom them but where it cannot be proved that the offence at section 15 of the Sexual Offences Act 2003 has been attempted. Moreover, separate representations have been made to Ministers that the six-month time limit hampers police investigations into other internet-related offences that might be charged under section 1, for example, in the context of what is known as trolling. Again, as my hon. Friend explained, new clause 20 would mean that cases under section 1 could be dealt with either in the magistrates court, or in the Crown court with an increased maximum penalty on conviction when tried on indictment of two years’ imprisonment, or an unlimited fine, or both. This will ensure that the penalty is proportionate to the seriousness of the offence.

The hon. Member for Hammersmith asked me about the impact on the system of this change. He will appreciate that because the matter is already an offence and already subject to a potential custodial penalty, there is already an impact on the system. We do not anticipate that additional penalties will have a significant impact, but there are cases which we believe justify a higher penalty than the six-month maximum and it is right to change the law to allow for that. Making the section 1 offence triable either way would also allow more time for investigations and for prosecutions to be brought, as has been said.

The hon. Gentleman makes the perfectly reasonable point that one case is not enough to make a change to the law. My hon. Friend quite rightly said that it is not simply the constituency case that she has come across that has driven her to do this but a perception—my hon. Friend the Member for South Swindon made this point too—that the world is changing and the law needs to change with it. We must recognise that the internet and mobile phones are increasingly used to send or attempt to send offensive and distressing material, including to vulnerable young people. Police and prosecutors need adequate time to respond to such offending and tough penalties should be available to the courts. The Government therefore welcome and accept the new clause.

New Clause 9 - Meeting a child following sexual grooming etc.

Sarah Champion (Labour, Rotherham)

I beg to move, That the clause be read a Second time.

It is a pleasure to serve under your chairmanship once again, Mr Crausby. It is also a great pleasure to follow the hon. Member for Ealing Central and Acton. I am very glad that her new clause has been accepted. I would like to build on that and deal with the next stage in the grooming process and its horrific consequences. Since my election I have been working a lot to find out more about child sexual exploitation. I did not know much about it before I was elected but there were a number of high-profile trials in South Yorkshire and Lancashire of gangs of perpetrators abusing large numbers of children. Unfortunately, at the moment a case involving a gang led by a woman is going through the Sheffield courts; she has abused large groups of children. Today, a Rotherham child who was known to the child sexual exploitation services is still missing and at large; we all hope and pray that she is swiftly and safely returned.

This is not a South Yorkshire, Oxfordshire or Greater Manchester issue. Unfortunately, the more I research it, the more I find that it is going on across the country, and has been going on for a long time. The media lead us to believe that it is a new crime, but it is not; it is an historical one. I have been working with Barnardo’s, which began its pioneering work in the field 20 years ago. I started work with Barnardo’s a year ago to see whether we could make a difference and stop this horrendous crime. With new clause 9, I hope that we can start to make that difference.

Over the past few months, I have had the pleasure of chairing a cross-party inquiry into the effectiveness of legislation for tackling child sexual exploitation and trafficking within the UK. The new clauses tabled today were developed after analysis of the written and oral evidence from the inquiry panel. Submissions came from a wide range of organisations with expertise in the topic, including the police, legal experts, local government, charities and, most importantly, young people who had been affected by sexual exploitation.

New clause 9 will remedy a damaging anomaly in the law. Currently, a child abuser is considered to be committing an offence under section 15 of the Sexual Offences Act 2003 only on the second occasion they make contact with a child and meet them, or travel to meet them, with the intention of committing a sexual offence. New clause 9 would mean that the perpetrator need make only one contact to be guilty. The exact same thresholds, evidence and definitions will apply: that is, the requirement will be retained for a subsequent meeting to be planned and for the intention to commit a sexual offence. New clause 9 would not remove those thresholds.

It is clear to me that if a child is travelling across the country, or just across the street, to meet an adult or vice versa, and if that adult has demonstrated the intent to commit a sexual offence, it is completely unnecessary to require them to make contact with the child at least twice before an offence has occurred. I want to make it clear that the amendment would not mean that we would accidentally convict people of grooming. By reducing the number of times that the individual must make contact from two to one, we are not talking about criminalising people who somehow accidentally send to a young person, for example, an explicit e-mail intended for someone else. The amendment will not lower the existing legal requirements. The abuser would still need to travel to meet the child with the intent to abuse them, which of course must be proven in order for the offence to have been committed.

The Committee might wonder why the amendment is necessary. After all, it normally takes more than one text, e-mail or phone call to set up a meeting about anything. However, we know from the Child Exploitation and Online Protection Centre—CEOP, part of the National Crime Agency—that online sexual exploitation has shifted in nature. Now, the time between initial contact and the offending behaviour is often extremely short and characterised by rapid escalation of threats and intimidation. CEOP describes a scattergun approach taken by perpetrators, who target a large number of potential victims.

We know that the methods used to groom online are becoming increasingly diverse. A Barnardo’s survey of its 28 sexual exploitation services showed that young people are now targeted by perpetrators through a variety of media, including social networks such as Facebook, instant messaging apps such as BlackBerry Messenger, dating apps such as Grindr and even online gaming. The law simply must be updated to keep pace with such changes. Importantly, in practical terms, the change means that the police would be required to prove only one contact rather than two.

Robert Buckland (Conservative, South Swindon)

I am extremely interested in the detailed way in which the hon. Lady is presenting her case. She is right to make the point that the offence is about the intentional offence at the second stage. It has never been about the initial meeting and the intent then. I remember having arguments about that in cases when the offence was introduced back in 2005. Her proposal, all importantly, does not affect that threshold. Therefore, the point she made about accidental meetings is met by her proposal.

Sarah Champion (Labour, Rotherham)

I agree that we are not talking about lowering thresholds, but about the process going towards that initial meeting. The hon. Gentleman knows that clear, detailed and explicit legislation that the police can use is in place. We do not look to change that at all. The new clause would enable the police to act a lot quicker.

As I said, changing the contact from two occasions to one reduces the time required for evidence collection by the police, which allows them to protect the child quicker and remove the perpetrator from the streets sooner. However, as I keep saying, that does not remove the already high requirement to prove that the person intended to commit a sexual offence.

The senior police officers questioned in my inquiry all agreed that making this change to legislation would enable them to do their jobs more easily and, most importantly, intervene earlier to protect children. Indeed, one described the new clause as “a no-brainer”, which all police officers would fully support. I cannot even imagine the horror for a police officer in having to sit and wait for a second act of grooming before they can intervene to protect the child. Minister, please do not let the Committee sit and wait.

Julian Huppert (Liberal Democrat, Cambridge)

I will speak briefly. I congratulate the hon. Lady on making a strong case for the new clause; it is a pleasure to support her proposal. I also congratulate Barnardo’s on its work; I found its briefing particularly helpful.

It was particularly useful that the hon. Lady highlighted the clear intention. We do not want people to be caught up inadvertently and the legislation is clear on that. I understand the logic of the need for a charge of grooming to be based on a number of occasions, but she is right to say that it could be one event with a number of communications within that event.

The hon. Lady also touched on the important point of what the police would have to prove. There may be a case of grooming over some considerable time, but to have proof that could stand up in court about sufficient instances could be a problem. It would be frustrating and perverse if the police had a case where they had proof of only one event but knowledge of others. I am not a lawyer and cannot comment on the exact details, but the new clause seems sensible.

Robert Buckland (Conservative, South Swindon)

The phrase in section 15 would be on one occasion. I can imagine arguments about whether to start splitting up an SMS and a response as different occasions. In fact, the argument should be that they are so close in time that they should be treated as one event. It seems sensible to try to avoid that sort of dancing on a pin by evolving the law.

Julian Huppert (Liberal Democrat, Cambridge)

My hon. Friend is absolutely right. I do not know what the case law says about the definition of occasion, but saying one occasion clearly makes it simpler. I hope that the Government will look at the new clause and, if there is no unforeseen problem, support it either now or on Report to allow us to make this change in the Bill. Moving from two occasions to one occasion follows the trend of other changes that the Government made in previous similar legislation. I hope that the new clause will be supported.

Andrew Slaughter (Labour, Hammersmith)

May I add my congratulations to my hon. Friend the Member for Rotherham on tabling the new clause, which I hope that the Government will support, and on all her work on this topic? In the relatively short time that she has been in the House she has become a crusader on this and it is great that she has used her position to try to change the law.

I have one question for the Minister. He has been put on the spot today with a number of new offences, and I am sure that he up to assimilating and accumulating them, but, as this area of the law is developing, will he think about having a more general review? The issue of a course of conduct occurs not only in this offence but in harassment and stalking offences. This is clearly a growing problem in many parts of society, and not just through electronic means. While I entirely commend the new clause tabled by my hon. Friend, we may also need to do more work in this area.

Jeremy Wright (Conservative, Kenilworth and Southam)

Before I address the details of the hon. Lady’s new clause, I thank her more generally for her work in the fight to tackle child sexual exploitation and the trafficking of children for sexual abuse. She has been far too modest to go into it in any detail herself, but I think that the Committee knows that she has done a huge amount of work in this area. The protection of children from this awful abuse is, as she recognises, something that many of us regard as a priority. I thank her for her work.

As the hon. Lady says, her new clause would amend the offence set out in section 15 of the Sexual Offences Act 2003. She has made a powerful argument. However, I have some reservations about the new clause. If she will forgive me, I will deal with those reservations first.

Currently, to meet the terms of the offence set out in section 15 of the 2003 Act, it must be proved that the defendant had met or communicated with the child on at least two occasions and subsequently, as the hon. Lady has set out, that the defendant met or arranged to meet the child, or that the defendant or the child travelled with the intention of meeting. Further, the defendant must intend to do something to the child either during or after the meeting that would amount to an offence under part 1 of the Act if done in England or Wales.

This offence was created specifically to tackle a pattern of behaviour that we commonly think of as grooming, and it was designed to protect children who may be contacted by adults, for example by e-mail or a text message, over a period of time, with the intention of subjecting them to sexual abuse.

The new clause would reduce the number of occasions that the defendant needed to meet or communicate with the child in order to satisfy that element of the offence, as the hon. Lady has said, from two occasions to one.

As I understand it, section 15 of the 2003 Act was crafted to cover what was thought at that time to be a gap in the law in respect of grooming. Grooming covers situations where an adult establishes contact with a child with the intention of gaining the child’s trust and confidence, but with the ultimate purpose of meeting that child for sexual activity. In practice, what is required in terms of what the defendant actually does may not, in fact, amount to a great deal under this offence, and to reduce the necessary contact to one such text could be thought to be disproportionate given the seriousness of the offence. It would remove the essence of the course of conduct through which a child’s trust is gained, which is central to the purpose of section 15.

Sarah Champion (Labour, Rotherham)

I am sure that the Minister knows that there could have been 2,000 texts before that one text that would then be the “trigger”, so it is not that it is a first text that is responded to. A whole catalogue of events could have happened up to that point, when the text then triggers this new clause.

Jeremy Wright (Conservative, Kenilworth and Southam)

The hon. Lady is right, and of course the point that she is making about course of conduct is something that the hon. Member for Hammersmith has also referred to. As I said, that course of conduct is a significant part of what I think was in the minds of those who drafted section 15 of the Act in the first place. My reservation is about making sure that we maintain reference to what the original drafters of the Act had in mind, but I am also conscious of the points that she and other hon. Members have made about the need to keep up with events. The 2003 Act is now more than 10 years old and things have changed substantially. It is important that we keep up with those changes.

Of course, depending on the circumstances of the case, contacting a child once might amount to the commission of, or an attempt to commit, the offence in section 14 of the 2003 Act, that being:

“Arranging or facilitating commission of a child sex offence”.

That would be so in a case where it can be proven that the accused intentionally arranged or facilitated something that would involve the commission of a child sex offence, on his own behalf or on behalf of another. Of course, as the Committee has already discussed this afternoon, in addition to offences under the 2003 Act, section 1 of the Malicious Communications Act 1988 broadly makes it an offence to send an indecent or grossly offensive message, which could include a text message, with the purpose of causing

“distress or anxiety to the recipient”.

That measure could be used against those who send distressing sexual material to children.

However, as I have said, the law in this area is complex and not perhaps as clear as it might be. The Government are always open to suggestions that could strengthen it. We have already discussed the amendment tabled my hon. Friend the Member for Ealing Central and Acton, which I believe strengthens the law further in this area, and I accept entirely that that is also the intent of the hon. Member for Rotherham in tabling this new clause. I also accept the wise advice of the hon. Member for Hammersmith that we must think these issues through carefully.

With all that in mind, I hope that the hon. Member for Rotherham will accept that it is sensible for me to go away and reflect on what she has said, and to work out what we can sensibly do next. I do not want to make promises to her that I cannot keep, but I will certainly consider carefully her argument and what other members of the Committee have said. Given that, I hope she will withdraw the new clause.

Sarah Champion (Labour, Rotherham)

I thank the Minister for taking the new clause seriously. I would like to have the opportunity to discuss it further with him if he needs additional information.

Jeremy Wright indicated assent.

Sarah Champion (Labour, Rotherham)

Thank you. I beg to ask leave to withdraw the motion.

New Clause 10 - Offence of abduction of child by other persons

Sarah Champion (Labour, Rotherham)

I beg to move, That the clause be read a Second time.

The new clause deals with the second anomaly to emerge from my inquiry into child sexual exploitation. At present, the Children’s Act 1989 makes it an offence to remove a looked-after child from care without authority if they are under the age of 18. However, the Child Abduction Act 1984 sets the age limit for children who can be removed from those with the legal right to control them—for example, their parents—at 16.

Many witnesses who gave evidence to the inquiry questioned why a child in the care system should be treated differently from a child living with their parents. Although we know that children in care are particularly vulnerable and are disproportionately likely to be victims of sexual exploitation, the majority of victims—some 80%—are not in the care system. All children should be afforded the same level of protection.

The new clause would amend the Child Abduction Act 1984 so that all children up to the age of 18 are considered to be abducted if they are removed or detained without the authority of those with parental responsibility or without a reasonable excuse. Police currently issue child abduction warning notices to deter people they suspect of grooming children. The notices state that the suspect has no permission to associate with the child and that if they continue to do so they may be arrested for an abduction offence under the relevant legislation—either the Child Abduction Act 1984 or the Children Act 1989. Because the notices refer back to the relevant legislation, the police are able to issue a notice to protect a child under 18 if the child is in care, but only a child under 16 if they are not.

The new clause simply seeks to address an anomaly in the law to allow us to offer better protection to vulnerable children. The practical application of the new clause is that the police will be able to issue child abduction warning notices to deter people from grooming children who are under 18 regardless of whether they are in care. The change was suggested by many who gave evidence to the inquiry, including senior police officers from Cheshire police and Greater Manchester police who gave both oral and written submissions on the point. It is the view of those witnesses that this simple change would help us protect more effectively all vulnerable children from being taken away from their families and subjected to horrific sexual crimes. I am sure the Minister agrees that we have a duty to consider the change carefully, as the implications for child safety are considerable.

Andrew Slaughter (Labour, Hammersmith)

I congratulate my hon. Friend on tabling the new clause, which is on another important matter. I do not know whether it will receive the same caveated welcome from the Minister. I simply say that there appears to be an anomaly that my hon. Friend is seeking to correct and I hope that the Government will look sympathetically upon the new clause

Jeremy Wright (Conservative, Kenilworth and Southam)

I simply observe in passing that it was the hon. Gentleman who suggested that I ought to caveat my welcome to the previous new clause by suggesting that I think about it carefully. I accepted his wise advice.

Coming back to new clause 10, I understand entirely the argument the hon. Lady makes and why she makes it. As she said, the general criminal law in England and Wales on child abduction is set out in part I of the Child Abduction Act 1984. Section 1 of that Act makes it an offence for a person with responsibility for a child, such as a parent, to take a child out of the UK without appropriate consent. Section 2 makes it an offence for all other persons to take or detain a child under the age of 16 so as to remove or keep him or her from a parent or other person’s lawful control. The maximum penalty for those offences is seven years. Her new clause would change section 2, so that an offence would be committed when the person abducted was under 18.

I understand that the intention of the new clause, as the hon. Member for Rotherham set out, is to rectify a perceived disparity in the ages that children might be abducted that arises based on whether or not the child is in care. The new clause would do that in respect of ages, but not penalties. There is much in what she says. We all wish to act with determination to prevent child abuse where possible and to punish it when it occurs. However, the arguments are complex, and other issues need to be taken into account.

Young people of 16 or 17 are lawfully able to be married, are generally deemed capable of living independently of their parents and are otherwise able to make decisions affecting their way of life, not least in sexual matters. It would therefore seem odd to create a simple offence of inducing a child who is capable of exercising his or her own free will to move away from his or her parents. A husband would not able to take his wife to live with him without the consent of her parents, which, as I am sure that the hon. Lady recognises, could lead us into all sorts of difficulties.

The section 2 child abduction offence in the 1984 Act is based on taking or detaining a child without the consent of a parent or a person with parental responsibly. The consent of the person taken or detained is not relevant. In cases in which a person is taken or detained without his or her consent, an offence of kidnapping or false imprisonment might have been committed, irrespective of the age of the victim. Changing the definition of a child in section 2 of the 1984 Act would leave an inconsistency in the Act itself, as section 1, which would remain unamended, defines a child as a person

“under the age of sixteen”.

The 1980 Hague convention on the civil aspects of international child abduction, with which the hon. Lady will be familiar, ceases to apply when the child attains the age of 16 years.

Robert Buckland (Conservative, South Swindon)

Does the Act not go further? It says:

“a child under the age of sixteen”.

If it were a child simpliciter, the normal presumption that the age is 18 would apply. Therefore, the Act is specifically worded, no doubt with the marriage provisions in mind. We all share the hon. Lady’s aspirations, but clearly we must get the detail right, so that we can cure the mischief that she identified.

Jeremy Wright (Conservative, Kenilworth and Southam)

My hon. Friend is right; that is the point I am making. We do not doubt the hon. Lady’s motivation, but there are some technical difficulties that we must resolve. We do not want to create additional anomalies by changing the law. I recognise that there are circumstances in which children of 16 or 17 require protection, but as people mature, the law recognises different ages at which rights, responsibilities and protections apply. The age at which someone is considered to be a child and is treated differently depends, as the hon. Lady knows, on a balance of factors, including the need to take into account a person’s preferences and circumstances. That applies, for example, to the offences under sections 9 to 15 of the Sexual Offences Act 2003, some of which we have already discussed.

Children who are in care are vulnerable and in need of particular protection. Making specific provision for them will not create an intolerable inconsistency. Rightly, the law recognises that they need different protection from that of children outside care. I hope that I have explained some of the difficulties of the hon. Lady’s proposal. Although I understand her motivation, I urge her to withdraw the new clause.

Sarah Champion (Labour, Rotherham)

I thank the Minister for his comments and for considering this matter fully. Will he consider the motivation behind the proposal to see whether we can do anything about it? I have met victims who were groomed and abused from the age of 11. It may be suggested that they can give informed consent because they are 16, but unfortunately that is not the case because they are so scarred. I have met victims whose parents drove them to the abuser’s home, and the abuse started when they were young children and continued into their late teens. We need to resolve this issue. Will the Minister commit to considering what I am trying to protect children from?

Jeremy Wright indicated assent.

Sarah Champion (Labour, Rotherham)

I beg to ask leave to withdraw the motion.

New Clause 11 - Offence of assaulting a worker selling alcohol

Dan Jarvis (Labour, Barnsley Central)

I beg to move, That the clause be read a Second time.

It is good to serve under your chairmanship again, Mr Crausby. We are introducing the new clause on behalf of the hundreds of thousands of public-facing workers across our country who go to work every day and put in the hours but who have to endure fear of violence, or actual violence, because of the nature of their work. The new clause would help to address that by creating a new offence of assaulting a shop worker selling alcohol, as defined by the Licensing Act 2003.

Julian Huppert (Liberal Democrat, Cambridge)

Would that offence replace the general one of assaulting such workers? In other words, if someone assaulted a worker in that category, would it only be possible to charge the assailant under the new offence, not the existing one?

Dan Jarvis (Labour, Barnsley Central)

If the hon. Gentleman shows a degree of patience, I will set out the case, and I hope that that will answer the question. If it does not, I will be happy to give way later.

I am pleased to say that our proposal is supported and advocated by many groups including the British Retail Consortium, the Association of Convenience Stores and the Union of Shop, Distributive and Allied Workers. They have done tremendous work on the matter, working hand in hand with employers and standing up for people across the country who want to do a hard day’s work free from fear. I am proud to be introducing the new clause with their support.

As will be clear to members of the Committee, the new clause is designed to grant protection to bar staff and people working in off-licences who often have to endure such assaults. It would offer them greater protection by doing three things. It would simplify the current sentencing guidelines for common assault, which can be complex and overcomplicated. It would encourage prosecutions to be brought against people who perpetuate such attacks; currently, too many people are let off, despite ample evidence. It would send a powerful message that would help to deter people from carrying out such dreadful assaults.

Before I say more about each of those points in turn, let me provide the Committee with some additional context. We should bear in mind three points when considering the new clause. First, let me address the scale of the problem and explain why we need to act. Every day across the UK, some 300 shop workers, many of them in licensed retailers, are violently assaulted simply for doing their job. According to a survey carried out by USDAW, a shop worker is verbally abused, threatened or physically attacked every minute of every day. The latest crime survey for England and Wales shows that there were 643,000 reported incidents of people suffering violence at work in 2011-12, including 319,000 threats of violence, as well as 324,000 cases of assault. As many as 34% of retail staff have reported being threatened with violence in the past year alone.

Those are alarmingly high figures, but we should be mindful of the fact that behind each of those numbers is a person, a distressing incident and a real mental and physical injury. We must not underestimate how traumatic such attacks can be. Most people would identify with the nerves, foreboding and feeling of helplessness that can occur when we return to a place in which we have had difficult and unhappy experiences. Victims of assault on the shop floor face having to return to work at the very spot where they were attacked, sometimes only days afterwards. That is why many workers who have been assaulted report feeling constant anxiety—a fear that the next person to walk up to the bar or the shop counter may be their next attacker. Unsurprisingly, some of them feel too traumatised ever to return to the same job, so they lose their livelihood and are forced to look for new employment.

Secondly, I want to explain why staff involved in the sale of alcohol face a particular issue. Many different types of public-facing workers are at risk of assault at work. I am sure that the Committee will agree that all workers deserve protection from violence in the workplace. It remains the case, however, that staff responsible for selling alcohol are often more at risk than most. This particularly comes with having to enforce the law and effectively police how the products are sold, such as asking for proof of age and having to refuse to serve under-age customers, which can easily trigger challenging and dangerous situations, with staff faced with people who may already be drunk, or hostile customers who have no intention of paying. That is why there deserves to be a distinction for workers selling alcohol on the front line.

Before I turn to the effect that the new clause would have, let me add a third point. Attacks are bad for employers as well as employees. Everyone can understand that it is not good for business when a work force is demoralised by the threat of violence and inhibited by fear. Firms do better and are more productive when staff feel safe and secure at work. That has been made clear by the Health and Safety Executive. It has reported the range of negative impacts that workplace violence in licensed and retail premises can have on businesses: lost staff time from injuries and stress; a higher staff turnover and increased costs to recruit replacements; and damage to the reputation of the business. Furthermore, if a shop worker in a licensed premises does not feel confident that the law is on their side, they are less likely to challenge someone trying to purchase alcohol under age.

With such points in mind, let me lay out the three ways that the new clause would seek to address the problem. First, it would simplify the current sentencing guidelines for common assault. Currently, sentencing is over-complicated. The guidelines detail three separate categories of harm and culpability, 19 different aggravating factors and 11 factors reducing seriousness. Assaulting someone who works with the public in the course of their employment is one of the aggravating factors. Experience has shown us that that is often not enough to see justice done. A separate offence for assaulting a public-facing worker would make the sentencing guidance much easier and more straightforward. It would help to encourage more prosecutions to be brought against people who perpetuate such attacks. That is the second impact that the new clause would have.

Sadly, there are too many cases where people suffer vicious assaults only to see their assailants let off with lenient sentences, or not brought to justice at all. I will provide the Committee with three examples. There is the case of a shop worker in Truro who noticed a shoplifter stealing alcohol. When he challenged him, the shoplifter head-butted the shop worker and broke his nose. The man was later arrested, but, in spite of CCTV footage, the Crown Prosecution Service decided not to prosecute him.

A second shop worker, in Gloucestershire, was assaulted after refusing to serve a customer alcohol at the till. The customer swore and shouted at her and called her manager for help. When her colleagues tried to escort the customer out of the shop, he kicked and punched three members of staff and spat in the face of the store manager. He later received only a police caution.

The third example concerns a landlord in Bolton. He refused to serve a young man whom he knew to be under age. Later that night, he took his dogs out for a walk after work, and the youth jumped on him and beat him up. He kicked him in the face after he had fallen to the ground. The young attacker was later identified and arrested, but the police let him off the next day with a caution.

Robert Buckland (Conservative, South Swindon)

I am listening carefully to the hon. Gentleman’s arguments. He illustrates three—on the face of it—very poor decisions by the police and prosecuting authorities. However, I have looked at the proposed new clause and share his intent and exasperation, but I am not sure that it would achieve what he wants. I will listen with great interest to what else he has to say.

Dan Jarvis (Labour, Barnsley Central)

I am grateful to the hon. Gentleman for his intervention. Given that he says that he agrees with the intent of the new clause, if he has more specific advice about how it could be improved to address the problem that I think we both agree exists, I am happy to discuss that with him either here or on another occasion, but the Minister will have heard his intervention and we will hear what he has to say.

I have outlined several cases that are worthy of consideration and are designed to illustrate my point. Is it any wonder that as many as 70% of retail staff who have suffered physical assault at work did not report it because they were not confident that anything would be done? Many of them have simply lost faith in the system, which is why we need to reform it and to send a powerful message that such assaults are not acceptable.

The new clause’s third effect would be to deter people from carrying out such dreadful assaults in the first place. A new specific offence would help to demonstrate that such things are not acceptable. The seriousness of the crime would be elevated above common assault in the sentencing guidelines, which in turn would increase the range of penalties for offenders and would encourage the Crown Prosecution Service to follow through with prosecutions.

Julian Huppert (Liberal Democrat, Cambridge)

I have listened carefully to what the hon. Gentleman says. It is clear that some awful things have happened, but I cannot see how what he suggests would have the desired result. The existing law of assault already has a six-month maximum. Presumably, he would still want the extra factors of culpability for gang behaviour and more brutal attacks to count. It seems that the proposal would replicate the existing assault law with an identical thing that applies to workers only. I simply do not see how this will help his cause.

Dan Jarvis (Labour, Barnsley Central)

As I am trying to explain, the new clause’s purpose is to assist with simplifying the current sentencing guidelines for common assault. As I have explained to the Committee, 300 shop workers are violently assaulted every day—300 yesterday, 300 today and 300 tomorrow. I am sure that the hon. Gentleman is not telling the Committee and his constituents, many of whom will have been affected by such attacks, that there is no problem. The new clause seeks to resolve that problem.

Julian Huppert (Liberal Democrat, Cambridge)

I totally accept that this is a serious problem, but a law already exists. I hope that the hon. Gentleman is not seeking a tokenistic gesture as that is not what people want. He says that the sentencing guidelines would be simplified, but would he take items out? Otherwise, he will have exactly the same issues in exactly the same way.

Dan Jarvis (Labour, Barnsley Central)

This is not a tokenistic gesture. This is about providing a solution to a genuine problem. As I have said, 300 people are violently assaulted every single day—300 yesterday, 300 today and 300 tomorrow—and hundreds of thousands of people around the country have been affected. I accept that the hon. Gentleman disagrees with the new clause’s effect, but it was brought forward in good faith and seeks to provide a solution to a significant problem.

Sarah Champion (Labour, Rotherham)

I support the new clause because hurling abuse at shop workers, which can escalate to assault, seems to have become acceptable. I understand the point that the hon. Member for Cambridge made, but people are not seeing that as a form of abuse when in a shop environment. We need to send a clear message that it is completely unacceptable. If that means specifying shop workers in legislation, then that needs to be done, because the message is not getting out there.

Dan Jarvis (Labour, Barnsley Central)

I agree with my hon. Friend. There seems to be a culture of acceptability around abusing and assaulting shop workers, and the numbers are horrifying. There is general agreement that there is a problem, but we will clearly not agree on the solution.

I want to make one further point that will hopefully add to the debate. If we look at similar legislation to protect emergency workers that has recently come into force in Scotland, there is already promising evidence about the difference that creating such an offence can make. Already, there have been more than 1,000 prosecutions and the total number of incidents has fallen as a result of the recent legislation in Scotland.

For all the reasons that I have given, I hope that the Committee and the Minister will give good consideration to the new clause. It is a relatively minor reform. It is not dissimilar to other legislation already on the statute book and it would, as my hon. Friend the Member for Rotherham said, send a very strong signal both to the victims and to potential assailants throughout the country. Fear is a terrible thing. It blights working lives and contaminates our everyday experiences with both physical and mental stress. We believe that no one should have to go through that when they turn up to work.

Robert Buckland (Conservative, South Swindon)

I entirely share the hon. Gentleman’s aspirations. He is right to talk about the threats faced and the fear felt by shop workers, including people who work in supermarkets, because we are dealing with on and off-licence premises. We all have friends and acquaintances who do that job day in, day out. The intentions are absolutely honourable. However, there are some flaws in the new clause, which I feel obliged to point out.

First, the hon. Gentleman talks about tougher sentencing. A summary-only offence does not allow that to happen, because the six-month maximum applies, so we are still dealing with the same sentencing constraints as apply to common assault.

Julian Huppert (Liberal Democrat, Cambridge)

The point was made about the legislation in Scotland. Is the hon. Gentleman aware that in Scotland the maximum term is nine months for that specific offence, as opposed to the identical six months in this case?

Robert Buckland (Conservative, South Swindon)

The point is very well made by my hon. Friend. If we are serious about higher sentences, this offence has to go beyond summary only and be either way.

Secondly, the best analogy that I can find is with the specific offence of assaulting a police officer in the execution of their duty. With that offence, which has been around for many years under the Police Act as amended, there is no requirement to prove that the defendant is aware or knows that the person is a police officer. However, what we see in this new clause is a requirement that the person

“knows, or ought to know, that the worker is acting in the course of the worker’s employment”.

Frankly, I would not put that into it. If the hon. Member for Barnsley Central wants to achieve what I think he wants to achieve, I do not see why he needs to complicate it.

Thirdly, we are talking about an offence of motivation. I have seen offences of that nature before, but they are very rarely used; they are very rarely prosecuted because they are not easy to prove.

I make just those few points. Although I support the hon. Gentleman’s intent, I think that much more work needs to be done on the new clause if it is to achieve the laudable aims that he has outlined.

Jeremy Wright (Conservative, Kenilworth and Southam)

It is very apparent from the debate that we have had that there is universal agreement that assaults on people who come into contact with the public as part of their work, whether in shops, bars, restaurants or any other place, are unacceptable. They are a matter that we should all take seriously, and I think we do. However, like others, I cannot agree that a new offence in the way that it has been set up by the hon. Member for Barnsley Central is the right way to address the issue.

There is already a range of offences that criminalise disorderly and violent behaviour and that apply in cases of violence towards people whose work brings them into contact with members of the public. Moreover, sentencing guidelines that have been referred to specify that where an assault is committed against someone providing a service to the public, whether in the public sector or the private sector, that is an aggravating factor and so should result in a higher sentence within the current maximum. The Sentencing Council has made it clear in its guidance that that includes those who work in shops and the wider retail business and who might well be enforcing the Licensing Act 2003.

The proposed new offence would mean that as well as having to prove that the assault took place, the prosecution, as my hon. Friend the Member for South Swindon pointed out, would have to demonstrate either that the offender knew or ought to have known that the worker was acting in the course of their employment or enforcing the 2003 Act, or that the assault was motivated, in whole or in part, by malice towards the worker by reason of the worker’s employment and their enforcement of the 2003 Act. The need to prove either of those elements, over and above the assault itself, could give rise to all manner of argument in the courts. It does not follow, just because the offence is situation-specific, that prosecutions would be easier to undertake.

I understand why the hon. Member for Barnsley Central is concerned that those cases are not being prosecuted as routinely as perhaps they should be, but the best answer is not to make it harder to prosecute those offences, which is what his new clause would do. Moreover, as has already been observed, the proposed maximum penalty for the offence—six months or a fine not exceeding level 5 on the standard scale—is the same as the maximum penalty for common assault. I am afraid it is difficult to glean what benefit a new offence would provide. I therefore hope he feels it is appropriate to withdraw his new clause.

Dan Jarvis (Labour, Barnsley Central)

This has been a useful debate. There is universal agreement that such assaults are completely unacceptable, but there is clearly disagreement on the best way to proceed. I am mindful that there are 300 violent assaults every day, and we are clearly not going to agree on the best way to reduce that number. Given the strength of feeling among the hundreds of thousands of workers across the country, I will press the new clause to a vote.

New Clause 16 - Protection of confidential information for victims of domestic and sexual abuse

Dan Jarvis (Labour, Barnsley Central)

I beg to move, That the clause be read a Second time.

The new clause seeks to close a small legal anomaly and make our criminal justice system work better for victims of domestic and sexual abuse. Before I go further, I will set out the context. I am particularly conscious of the report on domestic violence published today by Her Majesty’s inspectorate of constabulary, which was covered on several front pages this morning. I am sure the report will have some bearing on this debate.

The report makes it clear that much more needs to be done to improve how both the police and the criminal justice system respond to domestic abuse. It concludes that, although domestic violence is listed as a priority by most police forces and police and crime commissioners, that is not currently being translated into reality. The report also identifies unacceptable weaknesses in the quality of police investigations into domestic abuse and deficiencies in the skills and supervision of officers responsible for that core policing activity. That makes for a deeply worrying picture, especially when combined with other evidence published earlier this month by my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), the shadow Home Secretary.

Members of the Committee may already be aware of the statistics that expose serious shortcomings in how the criminal justice system has dealt with cases of domestic abuse since 2010. According to the latest available figures, there were more than 838,000 reports of domestic abuse in 2012-13. Although reports of abuse have risen by 11%, the number of prosecutions has fallen by 13%, and only 6% of all prosecutions result in a conviction. In summary, that presents us with two particular issues: first, how police forces investigate and deal with domestic violence on the front line, and secondly, how the criminal justice system treats those victims who take the courageous decision to come forward. Our new clause focuses on the second issue. It is important to put both on the record, however, as they relate to each other. If we ultimately want to encourage more victims to come forward and report these crimes, they need to have confidence that the system is on their side.

One of those victims was Eve Thomas, a remarkable woman whose equally remarkable story was the genesis for this proposal. I will share her story with the Committee. She hails from Greater Manchester, and for more than 20 years she had to endure horrific mental and physical abuse at the hands of her husband. Eventually, she found the strength to escape. With the support of the police, she pursued a prosecution against her husband. He was convicted of battery and placed under a restraining order. Free from the threat of abuse at last, Eve finally obtained a safe house address, which she kept a closely guarded secret to ensure that her ex-husband would never find her and harass her again.

Eve was beginning a new life and learning to live without fear. She was then taken to court on a civil matter, unrelated to the legal battle she had been through with her former husband. During proceedings, the judge asked her to state her name and safe address in open court. That completely threw Eve. If she had answered, her details would have become a matter of public record and potentially compromised both her and her daughters’ safety. Eve refused to state those details. She offered to provide the address in a sealed envelope to the judge, but that was refused. She was warned that she would be held in contempt of court and risked being sent to prison, but she was prepared to do that to protect her daughters and herself. Thankfully, a friend stepped in and saved her from that decision. Eve should never have been put in the position of having to make such a choice; no one should.

That example raises serious questions on how courts and all public bodies handle the confidential information of victims. Eve soon found that she was not alone, uncovering numerous cases where other victims were faced with that impossible situation. That is why she has campaigned ever since to change the legal anomaly that put her in that situation.

Robert Buckland (Conservative, South Swindon)

I am listening with great care and I am aware of that awful case. I have a lot of sympathy. In the courts, particularly the criminal courts, practitioners are all enjoined not to ask witnesses to produce their full home address details. Is the hon. Gentleman saying that that does not go far enough and we need an even firmer framework?

Dan Jarvis (Labour, Barnsley Central)

I will go on to explain in more detail precisely what we are looking to achieve. The specific case relating to Eve Thomas happened in a civil court. The Government have brought forward a proposal on how the matter could be resolved, and the purpose of the new clause is to tease out some more detail on that proposal. I am looking forward to what the Minister has to say, although I am grateful for the intervention of the hon. Member for South Swindon at this stage.

Eve Thomas has taken her message across the country. She has raised awareness of the issue among thousands of people and she has brought her campaign here to Parliament. In fact, her visit to Parliament was the first time she had ever been to London. Just a few months ago, the Opposition were proud to lend our support to her efforts to close the legal loophole, which can still require domestic violence victims to release their confidential information when in court on matters unrelated to their abuse. A subsequently tabled early-day motion has been signed by some 90 Members and has attracted strong cross-party support. The Government have also expressed sympathy for Eve’s campaign. In a letter mentioning the early-day motion, the Deputy Prime Minister states that the EDM has been supported by the Liberal Democrats. I hope that means that we will have the support of the hon. Member for Cambridge on this matter.

Earlier this year, I raised the issue with the Minister for Policing, Criminal Justice and Victims, the right hon. Member for Ashford (Damian Green), and requested his support. In his reply last month, he acknowledged that much more needed to be done in this area and promised further consultation to explore possible policy options. Then, quite suddenly, an announcement was made on international women’s day, earlier this month, and the Home Secretary issued a statement saying that a new code of practice would be issued to ensure that victims’ safe addresses would be protected. That positive step was welcome and Eve and her supporters took great heart from it. However, no further detail has been forthcoming since that commitment was made in the final paragraph of a press release issued some three weeks ago. In particular, the form that the code of practice will take is not yet confirmed. The Minister hinted to me in his letter of 14 February that he was exploring a voluntary code of practice, so it is not clear how much of a binding effect that will have.

Let me mention the specifics of the amendment. New clause 16 would require the Secretary of State to issue mandatory codes of practice to protect the safe addresses and other confidential information of domestic and sexual violence victims. Unlike the voluntary codes of practice that the Government appear to be proposing, our amendment would underpin those in statute and would apply to all court settings, closing the loophole that exposed Eve to such an impossible situation. That would protect victims of domestic abuse by ensuring that the data would never be disclosed, unless exceptional circumstances demanded it. It would also help prevent dangerous mistakes from occurring, such as the release of refuge addresses.

The amendment would still grant a degree of flexibility to the Government. They would still be able to bring forward the code of practice that they said they are exploring. The amendment would simply strengthen that code by underwriting it in law. The amendment specifies that the loophole on disclosure in courts be closed, which I am sure most people would agree is sensible. However, Ministers would still have room to go further, if they wished. I hope that the Minister and his colleagues look kindly on a relatively minor amendment.

Domestic abuse has often been treated in the past as a hidden crime that takes place behind net curtains. However, thinking of it as a marginal crime could not be further from the truth. Domestic abuse accounts for 20% of violent crime and one in 10 incidences of all crime. We know that the majority of domestic abuse incidents go unreported: victims will be abused 35 times, on average, before they report the matter to the police. There are many different things that we need to do to change that and we propose to start today, with the amendment. I hope that we have the Committee’s support.

Shailesh Vara (Conservative, North West Cambridgeshire)

I thank the hon. Gentleman for his comments on this important issue. I hope that I am able to give him some comfort about what the Government are doing.

There already exists a range of statutory and non-statutory obligations on courts and other bodies that together provide a high level of protection of an individual’s personal information. All individuals, but especially victims of domestic and sexual abuse, will have a genuine reason for wishing to avoid information such as their address from being disclosed unnecessarily and inappropriately. The need to disclose must be and is balanced with the need for courts to have essential information to administer justice and enable effective enforcement of judgments and orders.

Committee members will be aware of a campaign by Eve Thomas for Eve’s law and a marker to protect against disclosure of the personal information of victims of domestic violence. That stems from experience of civil enforcement proceedings to which Ms Thomas was a party. I am very grateful to her for raising this important issue.

Parties in civil proceedings are under a basic obligation to reveal their residential addresses, as must those providing witness statements in support of a party. Understandably, that may give rise to legitimate concerns from victims of abuse about the risk of disclosure to perpetrators. To guard against that, civil procedure rules already protect against the disclosure of confidential information in court, and in general, the courts are sensitive to those with a genuine reason for wishing to avoid disclosing their whereabouts and find ways to accommodate that. In family proceedings, including applications for protective injunctions and orders, contact details must be given but rules provide that they will not be disclosed other than by order of the court. I assure hon. Members that this Government take the issues of domestic and sexual violence and abuse very seriously. We have established cross-Government work programmes to improve the response and provide greater protection to victims of such forms of violence.

The Government carefully considered the issues raised by the Eve’s Law campaign. We were not persuaded that a new law or statutory marker, in court proceedings or more broadly across the many areas where a victim of abuse may interact with the state and other agencies, is a necessary and appropriate response. We are looking at whether we might strengthen the civil procedure rules to make the protection in civil court proceedings more explicit. That will involve discussions with victims groups and the judiciary.

We are also considering, through engagement with victims groups, how our enforcement system does everything it can to offer protection to victims while ensuring that creditors can access justice to enforce civil judgments where necessary. Moreover, we concluded that more could be done to raise awareness and ensure that proper attention was given to the protection of personal information of victims of abuse, in accordance with existing legal and other obligations. We have already incorporated a commitment in the call to end violence against women and girls action plan 2014, published in March, to develop a new non-statutory code of practice by April 2015.

I hope that hon. Members are assured that the Government are already committed to comprehensive actions and work in relation to the protection of personal information by courts, and more widely. For these reasons, we see no need for a statutory requirement for codes of practice for courts, and I respectfully invite the hon. Gentleman to withdraw the amendment.

Dan Jarvis (Labour, Barnsley Central)

I have listened carefully to what the Minister has said. Clearly, the Government accept that there is an issue here, hence the announcement made a couple of weeks ago by the Home Secretary and the Minister for Policing, Criminal Justice and Victims. I am content to look carefully at the detail of what the Minister has said. I am reassured by his response that he understands the excellent campaigning work of Eve Thomas. Given his response, I do not feel the requirement to press the matter to a vote, so I beg to ask leave to withdraw the clause.

New Clause 19 - Permission hearing and costs

Andrew Slaughter (Labour, Hammersmith)

I beg to move, That the clause be read a Second time.

I will try to be brief in moving this new clause, which takes us back to the subject of judicial review. The purpose of new clause 19 is to clarify that the costs following a formal hearing on permission should normally be paid by the losing party. It arises from one of the 25 recommendations in the Bingham Centre report, “Streamlining Judicial Review in a Manner Consistent with the Rule of Law”, which I spoke about earlier today. It does not require statute, to be perfectly honest, but for the reason I am about to give, I think it is appropriate that we put the provision in the Bill.

It is right that where a respondent resists permission on the papers, the claimant’s costs should be treated as costs in the case so that they are recoverable if the claim succeeds. No one is proposing a change there, but the Bingham Centre has said that, where there is a renewal hearing, it does not think that

“a defendant or interested party who unsuccessfully contests an oral permission hearing should be in any better position than one who applies unsuccessfully for summary judgment: both have caused the court to hold a hearing which has turned out to be unnecessary.”

The corollary is that claimants

“must bear equivalent responsibility for continuing to maintain that their claim is properly arguable.”

The problem with part 4 of the Bill is that—surprise, surprise—it will create an unlevel playing field. The Government now propose that

“an unsuccessful claimant should usually pay the respondent’s costs. If successful, they would only recover costs should their claim proceed to judgment and succeed.”

That has been criticised by the senior judiciary, who said in their response to the Government:

“To the extent that the Government intends to discourage the bringing of weak claims by the readier grant of costs against unsuccessful claimants, discouragement of defendants from delaying the progression of hearings by unsuccessfully opposing the grant of permission should be an equal consideration.”

The new clause challenges the Government’s justification for reform on three bases. First, the new clause would be fair to both sides, unlike the Government’s proposals in the Bill, which will put all the onus on often impecunious claimants and none on often well resourced defendants. Secondly, it is clearly more urgent now that the Government have decided to tip the balance against claimants and are putting onerous requirements on them that are not applied to respondents. Thirdly, the new clause would at least be a nod towards the practical steps that the Government should be looking at that may help limit the costs, but which would certainly streamline the process of judicial review.

Measures such as the new clause, as proposed by the Bingham Centre, are specifically designed to put into the minds of all parties that, as they are at risk of costs, they must proceed only when they have a good case, and that time-wasting or opportunistic appearances or renewals will not be unpunished. For all those reasons, the new clause is a sensible proposal, and in some ways would mitigate all the nonsense we dealt with earlier today.

Shailesh Vara (Conservative, North West Cambridgeshire)

Our intention is to introduce a principle that the costs of a failed oral permission hearing should routinely be recoverable. It would therefore be possible more often for an unsuccessful claimant to be ordered to pay the defendant’s reasonable costs of defending the unsuccessful application. We intend to invite the Civil Procedure Rule Committee to introduce that by amending the civil procedure rules.

Where the claimant is successful at the oral permission hearing, in the absence of other factors, we would expect the courts’ general position to be to make an order of costs in the case. That would mean that the costs of the oral permission hearing would be considered by the court at the conclusion of the substantive case as part of its determination of the overall costs. There would usually be a need for only one costs hearing. New clause 19 would provide for a different approach. It would require the court to make a cost order against the unsuccessful party at the end of the oral permission hearing, in advance and irrespective of the outcome of the substantive judicial review. I disagree with that approach.

First, unlike the approach that the Government envisage, the new clause would introduce a requirement, for judicial reviews that succeeded at an oral renewal and went on to a substantive hearing, to have more than one costs assessment. That would place further pressure on scarce court resources.

Secondly, just as a defendant—and thus the taxpayer—should not be required to bear the costs of defending an oral permission hearing against a claimant where permission to proceed with judicial review is turned down, they should not be required to bear those costs regardless of whether the claimant ultimately succeeds in their claim for judicial review.

As part of the court’s discretion on costs, it will be able to consider at the end of any substantive judicial review hearing who should bear the responsibility for the costs of the oral permission hearing. At that stage, it may well decide that the party that is ultimately unsuccessful should not have to bear the other side’s costs of the oral permission hearing at all. However, that can be considered only in the light of the outcome of the substantive case and in the context of all the costs that have been incurred. It is not a decision that can be made in isolation, in the way that the new clause would have the court do.

Thirdly, it is also the choice of the claimant to pursue the oral permission hearing; the defendant does not have any control over that. The defendant is not required to attend the oral permission hearing unless ordered to attend by the court, and may instead simply rely on the earlier arguments in their acknowledgement of service. Whether that situation would be enough to qualify as an exceptional circumstance which could cause the making of a costs award to be unjust is not clear from the new clause. That leaves open the possibility that a defendant who did not attend the oral renewal hearing could be made to meet the costs of a claimant whose paper application was weak, albeit that there was some merit in it, and whose judicial review itself ends up being unsuccessful.

Consequently, I think the Government’s approach—seeking changes to the civil procedure rules to allow for costs to be awarded against a failed claimant at an oral permission hearing—is wholly preferable to the new clause. I therefore ask the hon. Gentleman to withdraw it.

Andrew Slaughter (Labour, Hammersmith)

I am always surprised that the Minister can find lots of reasons to protect the interests of respondents—often his Department or the Departments of his colleagues. I am not persuaded, but I do not intend to press the new clause. However, I hope that the Minister will go away and look at this. To be fair, he says that the Government are already looking at the Bingham Centre report. I hope that they will look at it seriously and reconsider the matter. I beg to ask leave to withdraw the motion.

New Clause 22 - Aggravated offences and discrimination towards members of the armed forces

Dan Jarvis (Labour, Barnsley Central)

I beg to move, That the clause be read a Second time.

The new clause stands in my name and those of my hon. Friends the Members for Gedling (Vernon Coaker) and West Dunbartonshire (Gemma Doyle). Before I set out its merits, let me put something on the record. I know all members of the Committee will want to pay tribute to the bravery, commitment and service of all of our armed forces. It is also important to recognise at the outset that the overwhelming majority of the British public are proud of our armed forces and hold them in high regard. Just a glance at the latest Ministry of Defence reputation survey shows that the armed forces have a favourability rating of about 85%. Many people express that good will to our service personnel day in, day out in communities across the country. More than half of all service personnel surveyed said that strangers had approached them to offer thanks and support while they were wearing their uniform in public. Some 29% said that strangers had offered to buy them drinks or similar, and one third of army personnel said that they had received spontaneous offers of discounts in shops or other businesses.

I believe that is a testament to how that our armed forces serve us in theatres abroad and to the contribution they make to our local communities. We saw a perfect example of that when many were deployed to aid towns and villages hit by the severe flooding across the country earlier this year. Given the subject of the new clause, it is important that we put that on the record at the outset, because despite that widespread good will, it is a sad fact that too many of our armed forces have to endure instances of abuse, assault or discrimination here at home. Clearly, a very small minority carry out those sorts of acts against our servicemen and women, but a significant minority that can make a very significant impact. It is right that we seek to address that.

Labour members of the Committee are convinced of the case, which is why we propose the new clause. It would do two things: the first half would amend the Criminal Justice Act 2003 to make physical or verbal assault on a member of the armed forces an aggravated offence where the prosecution can establish that service in the armed forces was the motive for the assault. The second half would mandate the Secretary of State to bring forward legislation to make it an offence to discriminate against servicemen and women in the provision of goods and services in, for example, shops, restaurants, hotels and pubs. That would require amendments to the Equality Act 2010, so that it granted additional protections to our armed forces personnel, in similar terms to the protections already granted to disabled people, ethnic minorities and other protected groups.

Overall, there are three reasons, which I will briefly outline to the Committee, why this amendment should be made: there is the significant number of cases of servicemen and women suffering abuse, assault and discrimination; the fact that existing laws are not sufficient; and the signal that making the change would send.

I will begin with the evidence that action is needed. I draw the Committee’s attention to the armed forces and society survey carried out by Lord Ashcroft with the assistance of the Ministry of Defence in 2012. The study contacted 9,000 serving personnel across all three branches of the armed forces, and is acknowledged to be the most detailed and in-depth study to date in this area. The survey contains a number of startling statistics. It found that 21% of service personnel had suffered verbal abuse in the previous five years, 18% had been refused service in hotels, pubs or restaurants simply for wearing their uniforms, and around one in 20 had been the victim of violence or attempted violence. All members of the Committee would agree that that was totally unacceptable. If as many as one fifth of service personnel encounter that sort of abuse while overall favourability towards the armed forces is so high, this is not an insignificant problem.

We can see that from a number of case studies. In September 2012, TheDaily Telegraph reported that troops had been advised to travel together in groups after a number of soldiers were attacked, verbally abused and harassed while helping with the security of the London 2012 Olympic and Paralympic games. The paper cited a particularly nasty incident in which a lone off-duty soldier was set upon by four men, not far from Tower Hill tube station. The soldier was not wearing uniform, but was left badly beaten and with two black eyes after his attackers noticed he was carrying a military bag. It was also reported at the time that service personnel aboard HMS Ocean were subjected to regular volleys of abuse during the games while the vessel was moored at Greenwich pier.

I will briefly share two further examples with the Committee that are relevant to the discrimination aspects of the Bill. Both were cited by my hon. Friend the Member for Dunfermline and West Fife (Thomas Docherty) when the House debated this issue in January. The first incident took place last year, when the warship HMS Edinburgh was in dock in Leith to receive the freedom of Edinburgh in a civic ceremony at the City Chambers. At the end of the ceremony, a group of crew members visited a local pub, called the Ensign Ewart, all wearing dress uniform. The irony, of course, is that the pub is named after one of the heroes of the Napoleonic conflict. The landlord refused to serve them because they were members of the Royal Navy, saying that as they were in uniform they were likely to cause trouble.

There was a similar story involving soldiers of the 1st Battalion the Royal Anglian Regiment. The soldiers had recently returned home from Afghanistan. Having paraded through Romford to mark the end of their tour earlier in the day, a group of soldiers went for a drink at a pub called The Bill. When they went up to order a round of drinks, bar staff told them flatly that they were not allowed to serve “squaddies”. There was a time when language like that was applied to other groups of people in this country—when there were signs above boarding houses that read: “No dogs, no Irish, no blacks”. I am very glad that that sort of language is no longer accepted in our society. Indeed, many people will flinch even at the very mention of it. I believe we have to be equally ruthless about stamping out similar types of discrimination still taking place in our society.

Andrew Slaughter (Labour, Hammersmith)

I am thinking about some of the comments made about Dale Farm earlier. I am afraid that from time to time one still sees signs outside pubs saying “No Travellers”, so discrimination still affects a number of groups in the population, and we should be alive to it wherever it occurs.

Dan Jarvis (Labour, Barnsley Central)

We should be alive to discrimination wherever it occurs. In particular, we should and must be ruthless about stamping out any kind of discrimination against those who have served our country in the armed forces. Most people would agree that that should especially be the case for those who have put their lives on the line for us in armed conflict. That is part of the significant evidence base that we have to consider.

Let me turn to the other two reasons why the amendment should be considered. The second reason relates to the existing laws, which some might argue are adequate; the Government have been clear that that is their view, in particular on assault and abuse. I refer the Committee to what the Veterans Minister, the hon. Member for Broxtowe (Anna Soubry), said in Defence questions last week when asked about new offences, or increasing penalties for existing offences:

“the sentencing guidelines make it clear that if somebody is assaulted by virtue of their being in the armed forces, that is clearly an aggravating feature and as a result, in simple terms, the perpetrator receives a higher sentence—and rightly so.”—[Official Report, 17 March 2014; Vol. 577, c. 545.]

That sounds clear, but I do not believe that it is always as straightforward in practice. If we look at the sentencing guidelines for assault, there are no specific references to members of the armed forces. They say that it will be an aggravating factor if an offence is committed against those working in the public sector or providing a service to the public. It is not clear, however, whether that definition includes members of the Royal Navy, the Army or the Royal Air Force, or extends to them when off duty.

There is also a contrast with the approach taken to assaults on police constables and prison and immigration officers, to whom specific and separate offences relate. There is clearly an argument for going further for our armed forces. As well as granting clearer protections, it would make the existing legislation much clearer.

My final reason for supporting the amendment is the strong and powerful message that it would send, both to the minority of people who prey on our servicemen and women—it would say that such behaviour was no longer acceptable in Britain—and to our forces, recognising what they do for us and to affording them the respect and protections that they deserve.

The amendment is not designed to afford members of the armed forces rights over and above those that other people enjoy—quite the opposite. It is intended to allow service personnel to live their lives freely, as we all do, without fear of assault or discrimination because of the job that they do. As my right hon. Friend the shadow Defence Secretary has quoted:

“Personnel often said their priority was not special recognition, but not to be disadvantaged in society because they were in the Forces.”

The amendment would help us to achieve that.

Earlier this month, the Leader of the Opposition visited our troops in Afghanistan. He made it clear during his time at Camp Bastion that the measure before us would form part of the next Labour Government’s first Queen’s Speech. The Bill and the amendment to it give us a chance of a head start in doing the right thing for our forces, and of taking action now. I urge the Committee to seize that opportunity.

Shailesh Vara (Conservative, North West Cambridgeshire)

May I say at the outset that we have in Britain some of the finest men and women serving in our armed services? They are the bravest and finest. I am privileged to have in my constituency some RAF personnel. I have met them, and they are the best among the best of all of us.

The amendment raises the important question of how we as a society support those who serve their country in the armed forces. The Government are firmly committed to the protection of members of the armed forces from both criminal offences and discrimination of any sort. I am sure of agreement in Committee on the importance of supporting members of our armed forces, but I am not convinced that we need the changes to the criminal law proposed in the new clause. The first part seeks to extend the provisions in the Criminal Justice Act 2003 that deal with statutory aggravating factors. The current provisions deal with hostility on the grounds of race, religion, disability and sexual orientation, all personal characteristics that are beyond a person’s immediate control. Hostility on those grounds makes the offence particularly harmful, both to vulnerable individuals and to communities. It damages the strong bonds that make safer communities and a safer society.

However, hostility based on occupation is of a different kind. Members of our services have chosen that career path, and should be rightly proud that they have done so. They should be protected by the full force of the law, and we already have legislation prohibiting harassment, assault and the like, which applies to us all. Sentences can be aggravated if the offence is motivated by hostility on the grounds of race, religion, sexual orientation or disability. Indeed, when sentencing the murderers of Drummer Rigby, Mr Justice Sweeney was clear that they deliberately targeted him on the basis of his membership of the armed forces, and that the planning involved and the targeting of someone performing a public service were both aggravating features of their crime. That was taken into account when he passed sentence.

Sentencing guidelines that courts have been required by law to follow since 2010 make it clear that it should be considered an aggravating factor if the victim is serving the public. Moreover, it is open to the court to increase the sentence on account of factors that it deems to be aggravating in the particular case, even where such factors are not specifically set out in statute or guidance. The law and sentencing powers therefore already deal with the case of a victim who is a member of the armed services.

The last part of the new clause would place a duty on the Secretary of State to make discrimination against members of the armed services a criminal offence. Of course, we would all deplore discrimination against serving or former members of the armed forces, but I must say that there are considerable problems with proposed new subsection (3).

Discrimination is not currently dealt with under the criminal law as a criminal offence. Our equalities legislation works by placing duties on public authorities, providers of services and the like. When someone believes that those duties have not been complied with, they have civil remedies. The proposed new subsection would be the first piece of legislation that made discrimination a crime in and of itself. We do not think it would be right to have a criminal offence of that nature.

Equality legislation covers discrimination based on characteristics such as age, race, religion, disability, sexual orientation and sex. In general, discrimination therefore concerns the unjustified and unlawful less favourable treatment of someone because of an inherent characteristic, not their occupation. That is a very different matter from the proposed legislation, which would criminalise discrimination against one occupational group.

The Government are fully committed to the elimination of discrimination against service personnel. I fully agree that discriminating against a person wearing a uniform is simply unacceptable behaviour, but it is not an appropriate area for the criminal law. I praise again the finest and bravest men and women who serve us and do their duty for Queen and country, but for the reasons I have outlined, I ask the hon. Gentleman to consider withdrawing his new clause.

Dan Jarvis (Labour, Barnsley Central)

I am grateful for the opportunity to highlight the cases of members of our armed forces who have been discriminated against in the way we have discussed. There is complete agreement that such discrimination is completely unacceptable, and on the extent to which we owe a debt of gratitude to the members of our armed forces who do such a difficult job on our behalf. However, there is clearly no comparable agreement on how best to address the issue. It has been useful to debate the new clause, but I do not intend to press it to a vote. The Opposition retain the right to return to the issue at a later date. I therefore beg to ask leave to withdraw the clause.