The clause allows the court to make an order for costs in cases where the successful party has been represented pro bono. Although the work might have been done free of charge, the court could order a sum to be paid in respect of that work to a registered charity prescribed by the Lord Chancellor, and that charity will then be able to administer and distribute those funds to provide legal advice and help where it is needed most.
The clause applies in civil proceedings where the party in whose favour the cost order is given was represented on a pro bono basis by a lawyer, and will overcome an anomaly in cost law by allowing such cases to be treated in a similar way to normal fee-paying cases. The result will be a more level playing field in which both parties to the litigation are potentially liable for costs. I hope that that might encourage the earlier settlement of cases that are currently being pursued through the courts, as the opponent of a party who is represented pro bono will know from the outset that, if he loses, he may still have to pay something for the other parties’ representations in addition to his own costs.
Since the clause was first drafted we have made changes regarding registration in the Charities Act 1993, and to reflect that, the amendment is a technical one. I shall now look at the clause in more detail. Subsections (5) and (6) will prevent an order from being made against a person who is funded entirely by civil legal aid or is represented pro bono. It was felt that to expose those groups of people to one of these orders might put undue pressure on the civil legal aid fund or discourage people from offering pro bono assistance. Subsection (7) allows the rules of court to be made about making those orders. It is envisaged that those rules will be set out alongside the procedural matters—the factors that the court should have regard to, in addition to those in subsection (4).
Under subsections (3), (8) and (9) the sums generated by the cost orders will be directed to the charity prescribed by the Lord Chancellor, which will be registered in accordance with the Charities Act 1993. The charity will administer the payments that it receives for the benefit of the pro bono community generally, and recognised pro bono organisations and projects in particular. There is a small technical change that it is appropriate to look at. Under the 1993 Act, registration is in section 3; once that Act is amended by the Charities Act 2006, it will appear under section 3A. The amendment to subsection (9)(a) reflects that change, which I hope will be acceptable.
When the prescribed charity was discussed in the other place, amendments were tabled. The first of those would have allowed those undertaking pro bono work to nominate any charity to receive individual awards, and the second would have obliged the prescribed charity to consider the lawyer’s wishes in distributing awards. The Attorney-General, whose national pro bono co-ordinating committee has been a driver behind the current proposal, resisted those amendments. He explained that the fact that the prescribed charity would be a national body, able to effect strategic distribution of funds to the whole pro bono community, was one of its most valuable assets. It would be regrettable to bind the charity to a statutory obligation to take a particular lawyer’s expression of preference into account, when none of the other factors that may be considered in distributing the moneys would be expressed in the Bill.
The Attorney-General offered the reassurance that one of the factors that the prescribed charity would have regard to when making decisions—probably through guiding principles rather than as a constitutional fetter—would be any preference expressed by the legal representatives acting in a particular case. However, those preferences would not be determinative. If there was much of an advantage to the strategic perspective offered by the national charity, that would be lost. On that basis, the amendments were withdrawn.
On 16 April, we issued a consultation paper setting out our proposals for secondary legislation provided for by the clause, including any possible changes to procedural rules needed to help the courts deliver the provision. It has been made widely available to, among others, those who will benefit from the legislation, and to Members of this House, so that they have an opportunity to comment if they so wish.
I thank the Minister for her explanation. She is right to tell the Committee that the Under-Secretary of State for Justice, the hon. and learned Member for Redcar (Vera Baird) wrote to the Conservative Front Benchers, and I would imagine to the Liberal Democrat Front Benchers also, to explain what the Government are going to do. We are content with the amendment.