MPs have accepted amendments to legislation that would require charities or other organisations intervening in judicial review cases to pay the costs of the other parties only if their intervention is viewed as not having been of "significant assistance to the court".
The House of Commons last night voted to accept amendments introduced by Chris Grayling, the justice secretary, to the Criminal Justice and Courts Bill.
The bill had originally proposed that organisations intervening in judicial review cases would have to pay other parties’ costs arising from their intervention except in exceptional circumstances.
The House of Lords rejected that wording and sent the bill back to the Commons with amendments including that the judge in a judicial review case would have discretion to impose other parties’ costs on intervening organisations.
The government opposed that change and instead put forward new wording last week that would require a court to award costs against the intervener if any of four conditions were 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 are 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".
During the debate on the amendments in the House of Commons last night, Andy Slaughter, the shadow justice minister, said the Lords amendments giving the judge discretion over costs should remain and the latest amendment made the situation worse.
He told the house that interveners were typically charities or not-for-profit organisations that would feel the "chilling effect" of the proposed new arrangements.
"Previously, there could at least be exceptional circumstances," he said. "Now, a series of criteria must be met, otherwise a mandatory duty means that all costs associated with the intervention would be recoverable by all other parties, including losing parties.
"Therefore, in certain ill-defined circumstances, the court would have no discretion to act to prevent an unjust outcome, despite interveners having been granted permission to intervene by the court and encouraged to proceed.
"That will have a more damaging effect than the government’s original proposal to create a presumption that costs would be payable except in exceptional circumstances. Only this government could make the situation worse by making a concession."
Grayling told the house that Slaughter had missed the point. "Why should those who row in to back a judicial review that they lose be automatically insulated from the costs of doing so?" he said. "He knows that time after time the taxpayer picks up the bill.
"This measure is simply to ensure that those who row in behind a judicial review but do not make a valid contribution to the process cannot be immune from facing the costs if they lose."
MPs voted to accept the amendments and the bill will now return to the House of Lords for further consideration.