Chris Grayling, the justice secretary, has proposed that charities or other organisations intervening in judicial review proceedings might have to pay the resulting costs of other parties only if their intervention is judged to "have not been of significant assistance to the court".
The Criminal Justice and Courts Bill, which will be voted on by MPs today, originally proposed that organisations, including charities, that seek to intervene in judicial review cases would be liable to pay the costs incurred by other parties as a result of their intervention.
The House of Lords rejected this wording in October and sent the bill back to the House of Commons with wording that would give judges discretion over whether such costs should be awarded and the extent of the liability that interveners – third-party organisations – should have for costs arising from their involvement.
The justice secretary has proposed that MPs reject the Lords amendment, but last week made a counter-proposal that the court must award costs against the intervener when any of four conditions are met.
Those conditions are: when an intervener’s representations "have not been of significant assistance to the court"; when a significant part of those representations were not necessary; when the intervener has begun to act essentially as defendant or appellant instead of just an intervener; and when the intervener "has behaved unreasonably".
The judicial review provisions in the bill have been criticised by both the legal and third sectors as an attempt to silence criticism.
A joint statement today by more than 35 different charities and non-profit groups, led by the law and human rights group Justice, says Grayling’s amendment is "a minor amendment that will do little to temper a new and significant costs risk for charities and other organisations who offer their expertise to our courts in complex cases that affect the public interest".
Andrea Coombe, director of Justice, said the Lords amendments were a positive step. "Changes made in the House of Lords would leave the government’s reforms intact, but preserve the discretion of the court to do justice in the public interest in individual cases," she said.
The House of Commons will vote on the counter-proposal and the removal of the proposals from the Lords this evening.
The Liberal Democrats are expected to hold the key as to whether or not these are passed, although one Labour source said he was not hopeful of a Lib Dem rebellion.
After the vote has taken place, the bill will be returned to the Lords, and can go back and forth between the two chambers several times, in a process known as "ping pong".