Government reconsiders plan to make charities liable for judicial review costs

During a House of Lords debate on the Criminal Justice and Courts Bill, Lord Faulks, a Conservative minister, says there might be a case for modification

House of Lords
House of Lords

The government has indicated that it might reconsider plans to make organisations, including charities, that intervene in judicial review cases pay other parties’ costs arising from their involvement. 

The Criminal Justice and Courts Bill, which is currently going through the House of Lords, says any organisation that applies to intervene in judicial review proceedings would be liable to pay costs incurred by other parties in the case, which could be tens of thousands of pounds.

Organisations that are allowed to intervene in judicial review cases can give evidence even if they are not directly involved in proceedings.

Lawyers have warned that the potential financial burden would, in effect, prevent third sector organisations from intervening in judicial review proceedings.

But during a second reading debate on the bill in the House of Lords this week, Lord Faulks, the Conservative justice minister, said the government was considering changing its position.

"Those who intervene in a case to make arguments or adduce evidence can certainly add value to the proceedings, but we think it right that they should face the financial consequences of their decision to intervene," he said.

"However, having listened to arguments in the other place, we are persuaded that there may be a case for some modification of the provisions and we look forward to considering possible amendments."

Labour amendments to the bill during its passage through the House of Commons, designed to prevent charities from facing the costs, were defeated in March.

Melanie Carter, head of public and regulatory at the law firm Bates Wells Braithwaite, said that organisations that intervened in judicial review cases were often from the third sector, and their involvement was generally welcomed by the courts.

"The role of the third sector is an exceptionally important one, because it is often a third sector organisation that has an insight into the specific issues of a case," she said. "The third sector is often the voice of people who would otherwise not have their voices heard."

But she said the law as it was currently drafted meant that third sector organisations could face costs running into tens of thousands of pounds if they intervened in a case.

"The whole point about judicial review is that it is in the public interest," she said. "If the whole process is about getting to the right decision, then it is vital that third sector organisations are able to play their part."

The Ministry of Justice said in February that it had dropped plans to introduce a tougher test for which organisations, including charities, could bring judicial review proceedings. Carter had described the proposal as a "full-frontal attack" on charity campaigning.

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