Conservatives and Liberal Democrats vote to remove power from bill
A government proposal to set the rates for private prosecutions has been removed from the Victims and Courts Bill – for now – following a vote triggered by the Conservative Party.
Clause 12 allowed the Lord Chancellor to set the rates for recoverable costs in place of the long-standing test of ‘reasonably sufficient’ costs, and we reported last month that it went through the bill’s committee stage in the House of Lords.
However, it fell at the next parliamentary hurdle, the report stage, after peers voted by 215 to 168 in favour of an amendment laid by Conservative shadow justice minister Lord Keen of Elie that it be removed from the bill.
He argued that clause 12 would have “damaging consequences for access to justice in England and Wales”.
Lord Keen explained: “Where the state fails or indeed is unable to act, private prosecutions provide an alternative route for victims, be they individuals, corporations or, in many instances, charitable organisations.
“That is plainly in the public interest, and private prosecutors should therefore receive a reasonably sufficient compensation for the costs incurred, and indeed the victims should not have to meet the costs of having to vindicate their rights in the absence of a public prosecution.”
The total reimbursement of private prosecution costs amounted to just 0.18% of the legal aid fund, he noted. “It would hardly pass muster in the stationery department. It is a tiny proportion of overall costs.”
But while the saving would be “minimal”, the result would be “to make many private prosecutions quite untenable”.
Lord Keen said the Ministry of Justice acknowledged that the costs awarded were generally in line with the guideline hourly rates.
“The problem for the Ministry of Justice is the disparity between that reasonable rate of pay for those who carry out the private prosecution and what is paid to the defence under the legal aid scheme, which is, frankly, outrageously low and has not changed to any material extent during the last almost two years of this government. The result is a vast disparity between one party’s costs and another’s.”
He was backed by Lord Marks of Henley-on-Thames, the Liberal Democrats’ justice spokesman. The lack the resources to prosecute all crime reported to the police meant there was “a practical need for private prosecutions”.
He went on: “The fact is that organisations may be deterred from bringing private prosecutions if their costs recovery is capped at a level that makes them unaffordable or uneconomic. Furthermore, if frauds against charities or offences against others, whether not for profit or commercial, cannot be prosecuted, the prevalence of those offences may be increased, to the general detriment of society as a whole.”
The government should consult first on capping costs recovery and then legislate for the power, not the other way round, he argued.
Former Lord Chief Justice Lord Thomas of Cwmgiedd, as at the committee stage, spoke in favour of the clause.
“The costs of private prosecution mean that money disappears from the overall Treasury contribution to the justice system. I think we should pause long and hard before we remove the power of the government to control those costs,” he said.
“My own experience is that the costs of private prosecutions can, in many cases, be excessive. They are not subject to the rigorous discipline of CPS costs. If we deny the government the power to regulate, we will come to regret it.”
Justice minister Baroness Levitt insisted that the government’s motivation for clause 12 was “not to save money, and we do not wish there to be a chilling effect on private prosecutions”. She noted that the majority of private prosecutions did not result in any claim on central funds.
She said: “But what matters, regardless of the scale of expenditure, is clarity, consistency, proportionality and value for money. The justice select committee, in its 2020 report Private Prosecutions: Safeguards, invited the government to take a closer look at the private prosecution landscape, particularly where public funds are engaged.
“An enabling power as in clause 12 allows us to do precisely that, in a careful and evidence-led way.” The absence of prescribed rates “results in significant uncertainty, with the courts and the Legal Aid Agency required to assess claims case by case, often by reference to civil guideline rates and leading to disputes, appeals and judicial reviews, adding to costs and delay in the courts”.
Baroness Levitt stressed that the government has “an open mind about where the rates should be set”.
She added: “[Lord Keen] complains, quite correctly, that the legal aid rates for defence lawyers are far too low, but appears entirely to have forgotten which government were responsible for that.”
Lord Keen responded that if, as the minister had suggested, there was “some evidence at the margins” that lawyers might be overcharging, the government should establish the position first and then legislate.
In reply to Lord Thomas, he pointed out that 0.18% of the legal aid budget was £3.6m. This was not money leaving the justice system: “It is actually a very wise investment by the Ministry of Justice. Investing that very modest sum relieves the Crown Prosecution Service of a vast number of relatively minor prosecutions that would cost a great deal to pursue.”
The government will now have to decide whether to try and reinstate the clause later in the parliamentary process.