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Lord Henley moved Amendment No. 30:

Page 3, line 28, at end insert--
("( ) The legal expenses incurred by a Minister of the Crown in making an application under subsection (2) and in taking part in any proceedings to which he is made a party shall be borne by the Crown.").

The noble Lord said: Again, this is another relatively simple probing amendment whereby in Clause 5 we seek an assurance from the Government that in those cases where a Minister of the Crown wishes to intervene, should there be extra costs as a result of that, the other parties in the case will not be subject to the extra costs caused by that intervention and that those costs will be met by the Crown. That is a relatively simple point. I hope that the noble and learned Lord the Lord Chancellor understands it and can give me an assurance that that will be the case.

Lord Lester of Herne Hill: I have some sympathy with this amendment. I am entirely in favour of the right of the Crown to intervene where a declaration of incompatibility is being considered. That is obviously extremely important.

I welcome also the wide range of persons who will be entitled to intervene under Clause 5(2). However, given the deterrent effect of costs orders, which was mentioned on Second Reading, it seems to me extremely important that the litigant should not be deterred by the risk that he will have to pay the costs of the intervention of the Crown in such a case.

Obviously it would normally be dealt with as a matter of discretion by the courts, but it seems to me that it would be right to put the matter beyond doubt in the way that this amendment suggests so there is no sword of Damocles hanging over the head of the litigant that if there is a Crown intervention, then there may be liability for his costs, the respondent's costs and the Crown's costs as well.

10.30 p.m.

Lord Williams of Mostyn: This is plainly a genuine probing amendment--

Noble Lords: Oh!

Lord Williams of Mostyn: As indeed all the earlier ones undoubtedly were. This is of course an important question, but we believe it is best dealt with in a different way. I shall take a moment or two to explain why. As the Committee will be aware, the courts, in particular the higher courts to which this clause is relevant, already have considerable discretion to make

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orders for costs affecting both parties and non-parties to litigation. Although there are few Members of the Committee present, quite a number of those have had fairly frequent experience of reaching a conclusion about orders for costs.

In relation to civil cases in the High Court and the Court of Appeal, Section 51(3) of the Supreme Court Act 1981 states that,

    "the Court shall have full power to determine by whom and to what extent the costs are to be paid."

Various well known provisions on the award of costs in criminal cases are contained in the Prosecution of Offences Act 1985.

I suggest, with great respect, that there are good reasons why the allocation of costs should be left to the judges' discretion. The important point, among others, is that the court in question has heard the case fully; it knows all the relevant facts and it has had the benefit of submission from counsel for all parties. There are many factors which judges would properly want to take into account when assessing how costs should be allocated. This is not intended to be an exhaustive list, but these would include whether the case put forward by the party seeking the declaration had any substantive merit. Some cases are more meritorious than others and some which get to court have little merit at all except the opportunity of outdoor relief for members of the Bar. Perhaps it ought to be indoor relief for members of the Bar! We all know of litigants who insist on taking up court time when it is not reasonable or legitimate to do so. This is a matter for the judge's decision, having heard-- I stress--all the facts of the case and considered all the interlocking legislative provisions.

Another question could be: was there any wider public interest in the case? That ought to be a matter affecting the judge when he decides on the costs order. He would probably want legitimately in this area to consider the financial position of the applicant. That is not, of course, a strong aspect of judicial discretion in costs orders in the generality of cases, but it might--if a particular judge thought it appropriate--be relevant in this class of case. What is the outcome of the case? Is a declaration of incompatibility or a declarator ultimately awarded? How many other members of the public might be affected? What is the ambit of the legislative component which is the subject of a declaration of incompatibility? All those are subtle questions that judges ought to balance rather than being disqualified from carrying out that balance simply by the brutality of this present amendment. It is only right and proper that I should try to protect the judiciary from brutality from any quarter, even probing brutality.

We do not think it would be reasonable or sensible to put a specific provision in the Bill that in every case the Crown should bear the cost of a Minister applying for or being joined as a party. I do not regard this response as in any sense a party political point. It seems to us much better to leave questions of discretion with the judge in question. Judges do this every day of the week and by and large, if I may say so, they do it extremely well. They are well accustomed to deciding those issues, not least, for instance, in the general analogy of which one might think: in cases of judicial review.

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My noble and learned friend the Lord Chancellor has already plainly indicated--this was reaffirmed on Second Reading--that he regards those cases as particular, because he spoke of--he repeated it earlier today in Committee--a dedicated fund that there may well be for litigation within this general area. Bearing in mind that this will be peculiar litigation, and the clear indication which my noble and learned friend has given, I should have thought that this was an occasion when one should come to the conclusion: trust the judges. They know the full facts. This place, however infinitely wise, is not necessarily possessed of a crystal ball which would be suitably accommodating for every conceivable occasion in the future.

There might well be cases many years from now when this Government are no longer in power. Behind me I hear "shame" and "oh", but I am such a naive country boy that I can contemplate that further in the future perhaps than Members opposite. It might well be the case that a Minister of any governmental party would want to have a matter tested, but not within the constrained straitjacket that costs would always be dictated by Act of Parliament rather than by the discretion of the judge.

We do not believe that it is reasonable or sensible to insert a specific provision in the Bill that in every case the Crown should bear the costs of the Minister. There are likely to be cases--one recognises this--where the Crown would be required to meet its own costs. For instance, a tribunal might feel that the point behind the declaration of incompatibility was so plain that the Minister in question had behaved irrationally or unreasonably in contesting the matter. It might be thought that the interest of the Crown was so marginal that the relevant Minister might perhaps never have applied to be joined, on the powers given him in the Bill.

There is a wide spectrum of possibilities which reinforces our stance. In some cases of course the Crown may be required to meet its own costs, as I said a moment or two ago. It may even be that there would be circumstances where the Crown would have to meet the costs of other parties. There might be some cases where neither would be appropriate.

We do not see any grounds for moving away from the general well-known position that the allocation of costs in individual cases is a matter for the courts to determine in the light of individual and particular circumstances. I have taken a moment or two, because, although it is late, and although it does not go to the heart of the Bill, it is an important aspect. I hope that the noble Lord will think that I have done his amendment justice in replying as fully as I can.

Lord Lester of Herne Hill: Before the Minister sits down, he has rightly indicated that this is important, because it is about access to justice and the deterrent effect of costs. I wonder whether he could deal with my point, which goes more to Crown policy than to fettering the judges' discretion. I shall give just two examples. In the past year I have known public authorities--in one

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case the Official Solicitor and in the other the Human Embryo and Fertilisation Authority--to seek costs orders against a meritorious applicant--in one case as a condition for leave to appeal to the Court of Appeal, and in the other where an amicus curiae had been appointed.

In both cases it happened that the same judge-- a compassionate and commonsense judge--refused the application for costs, but the deterrent effect of the possibility of a costs order being made against those litigants was extremely severe. Had they not had confident counsel who encouraged them to take the substantial risk, they might never have been able to get their cases finally determined.

My question is: granted that the courts need to have wide discretion in deciding costs matters, will the Minister assure the Committee that, so far as concerns this Administration, the Crown would not normally seek a costs order against a litigant where there was a strongly arguable case, properly brought, on a genuine issue of public importance, because, with that assurance, the deterrent effect to which I referred would be much less? I realise that one cannot fetter the Crown and that one cannot give an absolute, unequivocal undertaking; but what I am seeking from the Minister is some indication of how the Crown sees the matter generally in terms of the deterrent effect.

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