Three lawyers’ associations have urged peers to support an amendment to the Criminal Justice and Courts Bill that would remove the automatic expectation that charities and other organisations intervening in judicial review cases would pay costs incurred by other parties as a result of their intervention.
The bill was introduced to the House of Commons in February. At an early stage in its passage through parliament, plans to introduce a tougher test for which organisations, including charities, could bring judicial review proceedings, were scrapped.
But charities and lawyers are concerned about measures that remain in Part 4 of the bill, which provides that third-party organisations intervening in judicial reviews must pay costs incurred by other parties as a result of their intervention.
It is expected that Part 4 of the bill will be discussed in the House of Lords on Monday, after which peers will vote on a number of proposed amendments. Among these, four peers have tabled an amendment providing that courts "shall have a discretion whether to order an intervener to pay the costs of a relevant party to the proceedings, and shall have a discretion whether to order a relevant party to the proceedings to pay the intervener’s costs".
Nicholas Lavender, a Queen’s counsel and chair of the Bar Council, which represents barristers in England and Wales, said: "We call on all peers to support the amendments to Part 4 of the Criminal Justice and Courts Bill tabled by Lord Pannick, Lord Woolf, Lord Carlile and Lord Beecham. These amendments will make sure that the legality of government decisions can be challenged by anyone with a legitimate case, that the fight will be fairly fought and that it will be refereed by judges, not government ministers."
Frances Edwards, president of the Chartered Institute of Legal Executives, and Andrew Caplen, president of the Law Society, have also supported the amendment. "Access to justice should be about the merits of your case, not the size of your wallet," said Edwards. Caplen warned that making interveners liable "will have a chilling effect on organisations who do this important work at their own expense".
Writing in The Times last week, Lord Pannick, a crossbench peer and also a Queen’s counsel, said he and his three colleagues – respectively a crossbencher, Labour and Liberal Democrat peer – were proposing the amendments on the grounds that the bill continued measures that were "unnecessary, disproportionate (because any problem is better addressed by judicial discretion) and damaging to justice".