The government is standing by proposed changes to the law that mean charities and other organisations that intervene in judicial review cases would have to pay costs incurred by other parties as a result of their intervention.
This could deter many charities from getting involved, because they would be potentially liable to pay tens of thousands of pounds, charity lawyers have said.
Clause 73 of the Criminal Justice and Courts Bill says that an organisation intervening in judicial review would have to pay any costs incurred by the other parties as a result of their involvement, except in "exceptional circumstances".
At the bill’s second reading in July, Lord Faulks, the Conservative justice minister, said the government was considering changing its position on that measure.
But a government report on the bill, published this week, says it stands by its original proposal.
The report says: "The government recognises that interveners can add value but considers that interventions should be made in appropriate cases and in a way which minimises the additional costs to the parties."
It adds that the government "recognises, however, that this clause has caused some disquiet", and as such says it is "looking seriously at how to help make sure that interveners consider carefully the cost implications of intervening without deterring those that intervene in appropriate cases".
Melanie Carter, a partner at the law firm Bates Wells Braithwaite, said: "The third sector has traditionally made enormous contributions to judicial review through its role as intervener in important cases of public interest. The costs risk will rise enormously under this provision – perhaps from £5,000 to possibly £25,000-plus. This will deter most third sector bodies.
"The government’s position is disingenuous – on the one hand it recognises that there is ‘disquiet’ and that interveners should continue to act in ‘appropriate cases’; on the other, the rules will make it obligatory that costs are awarded against interveners in all but ‘exceptional circumstances’. This is utterly illogical. The government needs to rethink its position on this issue if it truly wishes to preserve access to justice and the very important role of interveners."
The government’s report was issued in response to an analysis of the bill published by the House of Lords Select Committee on the Constitution. The bill reaches report stage in the Lords on 20 October, after which it will have a third reading, before amendments made by both houses are finally assessed.
Proposals that would have made it harder for charities to themselves bring judicial reviews were scrapped at an earlier stage of the bill.