Criminal Justice and Courts Bill (HL Bill 49)

(6B) Written consent is not a defence by virtue of subsection (6A) if
the person was under the age of 18 at the time the consent was
given.”, and

(b) in subsection (8), after “defence” insert “by virtue of subsections (5) to
5(7)”.

78 Reporting restrictions in proceedings other than criminal proceedings

(1) Section 39 of the Children and Young Persons Act 1933 (power to prohibit
publication of certain matter in newspapers) is amended as follows.

(2) In subsection (1)—

(a) 10after “any proceedings” insert “, other than criminal proceedings,”, and

(b) after “direct that” insert “the following may not be included in a
publication”.

(3) In subsection (1)(a)—

(a) omit “no newspaper report of the proceedings shall reveal”, and

(b) 15omit “, or include any particulars calculated to lead to the
identification,”.

(4) In subsection (1), after paragraph (a) insert—

“(aa) any particulars calculated to lead to the identification of a child
or young person so concerned in the proceedings;”.

(5) 20In subsection (1)(b)—

(a) for “no picture shall be published in any newspaper as being or
including” substitute “a picture that is or includes”, and

(b) omit “as aforesaid”.

(6) In subsection (2), for “publishes any matter” substitute “includes matter in a
25publication”.

(7) After subsection (2) insert—

“(3) In this section—

• “publication” includes any speech, writing, relevant programme
  or other communication in whatever form, which is addressed
  30to the public at large or any section of the public (and for this
  purpose every relevant programme shall be taken to be so
  addressed), but does not include a document prepared for use
  in particular legal proceedings;

• “relevant programme” means a programme included in a
  35programme service within the meaning of the Broadcasting Act
  1990.”

(8) In the heading of that section, omit “in newspapers”.

(9) After that section insert—

“39A Prohibition on publication of certain matters: providers of
40information society services

Schedule 1A makes special provision in connection with the operation
of section 39 in relation to persons providing information society
services.”

(10) In section 57(3) of the Children and Young Persons Act 1963 (extending section
39 of the Children and Young Persons Act 1933 to Scotland) after paragraph (a)
(but before “and”) insert—

“(aa) as it extends to Scotland, the said section 39 has effect as if the
5references to a publication were references to a newspaper;”.

(11) In consequence of the amendment made by subsection (2)(a), omit paragraph
2 of Schedule 2 to the Youth Justice and Criminal Evidence Act 1999.

(12) Subsection (2)(a) does not affect the operation of section 39 of the Children and
Young Persons Act 1933 in relation to criminal proceedings instituted before
10the day on which it comes into force.

(13) For the purposes of subsection (12)—

(a) proceedings other than proceedings on appeal are instituted when
proceedings are instituted for the purposes of Part 1 of the Prosecution
of Offences Act 1985, in accordance with section 15(2) of that Act;

(b) 15proceedings on appeal are instituted when the notice of appeal is given
or the reference under section 9 or 11 of the Criminal Appeal Act 1995
is made.

79 Reporting restrictions: information society services

Schedule 15 makes special provision in connection with the operation of the
20following in relation to persons providing information society services—

(a) section 39 of the Children and Young Persons Act 1933;

(b) section 49 of the Youth Justice and Criminal Evidence Act 1999 as it
applies to a publication that includes matter in contravention of a
direction under section 45A(2) of that Act.

25Other matters

80 Representations to Parliament by the President of the Supreme Court

(1) Section 5 of the Constitutional Reform Act 2005 (representations to Parliament)
is amended as follows.

(2) At the beginning insert—

“(A1) 30The President of the Supreme Court may lay before Parliament written
representations on matters that appear to the President to be matters of
importance relating to the Supreme Court or to the jurisdiction it
exercises.”

(3) In subsections (2) and (3), for “those matters” substitute “the matters
35mentioned in subsections (A1) and (1)”.

81 The supplementary panel of the Supreme Court

In section 39(4) of the Constitutional Reform Act 2005 (circumstances in which
a judge of the Supreme Court becomes a member of the supplementary panel),
after “while he holds such office” insert “or within 2 years of ceasing to hold
40such office”.

82 Minor amendments

(1) In section 132(4A) of the Powers of Criminal Courts (Sentencing) Act 2000
(compensation orders: appeals etc), for “House of Lords” substitute “the
Supreme Court”.

(2) 5In section 13(6A)(a) of the Tribunals, Courts and Enforcement Act 2007 (rules
of court about when the Court of Session may grant permission to appeal
against a decision of the Upper Tribunal), after “principle” insert “or practice”.

Part 4 Judicial review

10Judicial review in the High Court and Upper Tribunal

83 Likelihood of substantially different outcome for applicant

(1) In section 31 of the Senior Courts Act 1981 (applications for judicial review),
after subsection (2) insert—

“(2A) The High Court—

(a) 15may refuse to grant relief on an application for judicial review,
and

(b) may decline to make an award under subsection (4) on such an
application,

if it appears to the court to be highly likely that the outcome for the
20applicant would not have been substantially different if the conduct
complained of had not occurred.”

(2) In that section, before subsection (4) insert—

“(3B) When considering whether to grant leave to make an application for
judicial review, the High Court—

(a) 25may of its own motion consider whether the outcome for the
applicant would have been substantially different if the conduct
complained of had not occurred, and

(b) may consider that question if the defendant asks it to do so.

(3C) If, on considering that question, it appears to the High Court to be
30highly likely that the outcome for the applicant would not have been
substantially different, the court may refuse to grant leave.”

(3) In that section, after subsection (7) insert—

“(8) In this section “the conduct complained of”, in relation to an application
for judicial review, means the conduct (or alleged conduct) of the
35defendant that the applicant claims justifies the High Court in granting
relief.”

(4) In section 15 of the Tribunals, Courts and Enforcement Act 2007 (the Upper
Tribunal’s “judicial review” jurisdiction), after subsection (5) insert—

“(5A) In cases arising under the law of England and Wales, section 31(2A) of
40the Senior Courts Act 1981 applies to the Upper Tribunal when
deciding whether to grant relief under subsection (1) as it applies to the

High Court when deciding whether to grant relief on an application for
judicial review.”

(5) In section 16 of the Tribunals, Courts and Enforcement Act 2007 (application
for relief under section 15(1)), before subsection (4) insert—

“(3B) 5In cases arising under the law of England and Wales, when considering
whether to grant permission to make the application, the tribunal—

(a) may of its own initiative consider whether the outcome for the
applicant would have been substantially different if the conduct
complained of had not occurred, and

(b) 10may consider that question if the respondent asks it to do so.

(3C) In subsection (3B) “the conduct complained of” means the conduct (or
alleged conduct) of the respondent that the applicant claims justifies
the tribunal in granting relief.

(3D) If, on considering the question mentioned in subsection (3B)(a) and (b),
15it appears to the tribunal to be highly likely that the outcome for the
applicant would not have been substantially different, the tribunal may
refuse to grant permission.”

(6) In that section, after subsection (6) insert—

“(6A) In cases arising under the law of England and Wales, section 31(2A) of
20the Senior Courts Act 1981 applies to the Upper Tribunal as regards the
making of an award under subsection (6) as it applies to the High Court
as regards the making of an award under section 31(4) of the Senior
Courts Act 1981.”

84 Provision of information about financial resources

(1) 25In section 31(3) of the Senior Courts Act 1981 (applications for leave to apply
for judicial review)—

(a) after second “unless” insert “—

“(a)”, and

(b) at the end insert “, and

(b) 30the applicant has provided the court with any
information about the financing of the application that is
specified in rules of court for the purposes of this
paragraph or, notwithstanding a failure to do so, the
court in its discretion considers that it is nevertheless
35appropriate to grant the applicant leave to make the
application for judicial review.”

(2) In that section, after subsection (3) insert—

“(3A) The information that may be specified for the purposes of subsection
(3)(b) includes—

(a) 40information about the source, nature and extent of financial
resources available, or likely to be available, to the applicant to
meet liabilities arising in connection with the application, and

(b) if the applicant is a body corporate that is unable to demonstrate
that it is likely to have financial resources available to meet such
45liabilities, information about its members and about their ability

to provide financial support for the purposes of the
application.”

(3) In section 16(3) of the Tribunals, Courts and Enforcement Act 2007
(applications for permission or leave to apply for relief under section 15(1):
5Upper Tribunal’s “judicial review” jurisdiction)—

(a) after “unless” insert “—

“(a)”, and

(b) at the end insert “, and

(b) in cases arising under the law of England and Wales, the
10applicant has provided the tribunal with any
information about the financing of the application that is
specified in Tribunal Procedure Rules for the purposes
of this paragraph or, notwithstanding a failure to do so,
the tribunal in its discretion considers that it is
15nevertheless appropriate to grant the applicant
permission or leave to apply for relief.”

(4) In that section, after subsection (3) insert—

“(3A) The information that may be specified for the purposes of subsection
(3)(b) includes—

(a) 20information about the source, nature and extent of financial
resources available, or likely to be available, to the applicant to
meet liabilities arising in connection with the application, and

(b) if the applicant is a body corporate that is unable to demonstrate
that it is likely to have financial resources available to meet such
25liabilities, information about its members and about their ability
to provide financial support for the purposes of the
application.”

85 Use of information about financial resources

(1) This section applies when the High Court, the Upper Tribunal or the Court of
30Appeal is determining by whom and to what extent costs of or incidental to
judicial review proceedings are to be paid.

(2) The information to which the court or tribunal may have regard includes—

(a) information about the financing of the proceedings provided in
accordance with section 31(3)(b) of the Senior Courts Act 1981 or
35section 16(3)(b) of the Tribunals, Courts and Enforcement Act 2007, and

(b) any supplement to that information provided in accordance with rules
of court or Tribunal Procedure Rules.

(3) The court or tribunal may consider whether to order costs to be paid by a
person, other than a party to the proceedings, who is identified in that
40information as someone who is providing financial support for the purposes of
the proceedings or likely or able to do so.

(4) In this section “judicial review proceedings” means—

(a) proceedings on an application for leave to apply for judicial review,

(b) proceedings on an application for judicial review,

(c) 45proceedings on an application for permission to apply for relief under
section 15 of the Tribunals, Courts and Enforcement Act 2007 in a case
arising under the law of England and Wales,

(d) proceedings on an application for such relief in such a case,

(e) any proceedings on an application for leave to appeal from a decision
in proceedings described in paragraph (a), (b), (c) or (d), and

(f) proceedings on an appeal from such a decision.

86 5Interveners and costs

(1) This section applies where, in judicial review proceedings, a person other than
a relevant party to the proceedings (an “intervener”) is granted permission to
file evidence or make representations in the proceedings.

(2) The High Court and the Court of Appeal shall have a discretion whether to
10order an intervener to pay the costs of a relevant party to the proceedings and
shall have a discretion whether to order a relevant party to the proceedings to
pay the intervener’s costs.

(3) In this section, “judicial review proceedings” means—

(a) proceedings on an application for leave to apply for judicial review,

(b) 15proceedings on an application for judicial review,

(c) any proceedings on an application for leave to appeal from a decision
in proceedings described in paragraph (a) or (b), and

(d) proceedings on an appeal from such a decision.

(4) For the purposes of this section, “a relevant party” to judicial review
20proceedings means any of the following—

(a) the applicant and the defendant,

(b) in the case of proceedings on an appeal, the appellant and the
respondent, and

(c) any other person who is directly affected by the proceedings and on
25whom the application for judicial review, or for leave to apply for
judicial review, has been served.

87 Capping of costs

(1) A costs capping order may not be made by the High Court or the Court of
Appeal in connection with judicial review proceedings except in accordance
30with this section and sections 88 and 89.

(2) A “costs capping order” is an order limiting or removing the liability of a party
to judicial review proceedings to pay another party’s costs in connection with
any stage of the proceedings.

(3) The court may make a costs capping order only if leave to apply for judicial
35review has been granted.

(4) The court may make a costs capping order only on an application for such an
order made by the applicant for judicial review in accordance with rules of
court.

(5) Rules of court may, in particular, specify information that must be contained in
40the application, including—

(a) information about the source, nature and extent of financial resources
available, or likely to be available, to the applicant to meet liabilities
arising in connection with the application, and

(b) if the applicant is a body corporate that is unable to demonstrate that it
is likely to have financial resources available to meet such liabilities,
information about its members and about their ability to provide
financial support for the purposes of the application.

(6) 5The court may make a costs capping order only if it is satisfied that—

(a) the proceedings are public interest proceedings,

(b) in the absence of the order, the applicant for judicial review would
withdraw the application for judicial review or cease to participate in
the proceedings, and

(c) 10it would be reasonable for the applicant for judicial review to do so.

(7) The proceedings are “public interest proceedings” only if—

(a) an issue that is the subject of the proceedings is of general public
importance,

(b) the public interest requires the issue to be resolved, and

(c) 15the proceedings are likely to provide an appropriate means of resolving
it.

(8) The matters to which the court must have regard when determining whether
proceedings are public interest proceedings include—

(a) the number of people likely to be directly affected if relief is granted to
20the applicant for judicial review,

(b) how significant the effect on those people is likely to be, and

(c) whether the proceedings involve consideration of a point of law of
general public importance.

(9) The Lord Chancellor may by regulations amend this section by adding,
25omitting or amending matters to which the court must have regard when
determining whether proceedings are public interest proceedings.

(10) Regulations under this section are to be made by statutory instrument.

(11) A statutory instrument containing regulations under this section may not be
made unless a draft of the instrument has been laid before, and approved by a
30resolution of, each House of Parliament.

(12) In this section and sections 88 and 89—

• “costs capping order” has the meaning given in subsection (2);

• “the court” means the High Court or the Court of Appeal;

• “judicial review proceedings” means—

  (a)

  35proceedings on an application for leave to apply for judicial
  review,

  (b)

  proceedings on an application for judicial review,

  (c)

  any proceedings on an application for leave to appeal from a
  decision in proceedings described in paragraph (a) or (b), and

  (d)

  40proceedings on an appeal from such a decision,

  and the proceedings described in paragraphs (a) to (d) are “stages” of
  judicial review proceedings.

(13) For the purposes of this section and section 88, in relation to judicial review
proceedings—

(a) 45the applicant for judicial review is the person who is or was the
applicant in the proceedings on the application for judicial review, and

(b) references to relief being granted to the applicant for judicial review
include the upholding on appeal of a decision to grant such relief at an
earlier stage of the proceedings.

88 Capping of costs: orders and their terms

(1) 5The matters to which the court must have regard when considering whether to
make a costs capping order in connection with judicial review proceedings,
and what the terms of such an order should be, include—

(a) the financial resources of the parties to the proceedings, including the
financial resources of any person who provides, or may provide,
10financial support to the parties;

(b) the extent to which the applicant for the order is likely to benefit if relief
is granted to the applicant for judicial review;

(c) the extent to which any person who has provided, or may provide, the
applicant with financial support is likely to benefit if relief is granted to
15the applicant for judicial review;

(d) whether legal representatives for the applicant for the order are acting
free of charge;

(e) whether the applicant for the order is an appropriate person to
represent the interests of other persons or the public interest generally.

(2) 20A costs capping order that limits or removes the liability of the applicant for
judicial review to pay the costs of another party to the proceedings if relief is
not granted to the applicant for judicial review must also limit or remove the
liability of the other party to pay the applicant’s costs if it is.

(3) The Lord Chancellor may by regulations amend this section by adding to,
25omitting or amending the matters listed in subsection (1).

(4) Regulations under this section are to be made by statutory instrument.

(5) A statutory instrument containing regulations under this section may not be
made unless a draft of the instrument has been laid before, and approved by a
resolution of, each House of Parliament.

(6) 30In this section—

• “free of charge” means otherwise than for or in expectation of fee, gain or
  reward;

• “legal representative”, in relation to a party to proceedings, means a
  person exercising a right of audience or conducting litigation on the
  35party’s behalf.

89 Capping of costs: environmental cases

(1) The Lord Chancellor may by regulations provide that sections 87 and 88 do not
apply in relation to judicial review proceedings which, in the Lord
Chancellor’s opinion, have as their subject an issue relating entirely or partly
40to the environment.

(2) Regulations under this section—

(a) may make provision generally or only in relation to proceedings
described in the regulations, and

(b) may include transitional, transitory or saving provision.

(3) 45Regulations under this section are to be made by statutory instrument.

(4) A statutory instrument containing regulations under this section is subject to
annulment in pursuance of a resolution of either House of Parliament.

Planning proceedings

90 Procedure for certain planning challenges

5Schedule 16 contains amendments—

(a) that require leave of court to be obtained before certain planning
applications may be made, and

(b) that set out a procedure for challenging costs orders made in
connection with certain planning orders and decisions.

91 10Periods of time for certain legal challenges

(1) In section 61N of the Town and Country Planning Act 1990 (legal challenges
relating to neighbourhood development orders)—

(a) in subsections (1)(b) and (2)(b), after “beginning with” insert “the day
after”;

(b) 15in subsection (3)(b)—

(i) for “during” substitute “before the end of”;

(ii) after “beginning with” insert “the day after”.

(2) In section 106C of that Act (legal challenges relating to development consent
obligations)—

(a) 20in subsection (1)(b)—

(i) for “during” substitute “before the end of”;

(ii) after “beginning with” insert “the day after”;

(b) in subsection (1A), after “begins with” insert “the day after”;

(c) in subsections (2)(b) and (3)(b)—

(i) 25for “during” substitute “before the end of”;

(ii) after “beginning with” insert “the day after”.

(3) In section 13 of the Planning Act 2008 (legal challenges relating to national
policy statements), in subsections (1)(b), (2)(b), (3)(b), (4)(b), (5)(b) and (6)(b)—

(a) for “during” substitute “before the end of”;

(b) 30after “beginning with” insert “the day after”.

(4) In section 118 of that Act (legal challenges relating to applications for orders
granting development consent)—

(a) in subsections (1)(b), (2)(b) and (3)(b)—

(i) for “during” substitute “before the end of”;

(ii) 35after “beginning with” insert “the day after”;

(b) in subsections (4)(b), (5)(b) and (6)(b)—

(i) for “during” substitute “before the end of”;

(ii) after “day”, wherever occurring, insert “after the day”;

(c) in subsection (7)(b)—

(i) 40for “during” substitute “before the end of”;

(ii) after “beginning with” insert “the day after”.

Part 5 Final provisions

92 Power to make consequential and supplementary provision etc

(1) The Lord Chancellor or the Secretary of State may by regulations make
5consequential, supplementary, incidental, transitional, transitory or saving
provision in relation to any provision of this Act.

(2) The regulations may, in particular, amend, repeal or revoke legislation.

(3) Regulations under this section are to be made by statutory instrument.

(4) A statutory instrument containing regulations under this section is subject to
10annulment in pursuance of a resolution of either House of Parliament, subject
to subsection (5).

(5) A statutory instrument containing regulations under this section that amend or
repeal a provision of an Act (whether alone or with other provision) may not
be made unless a draft of the instrument has been laid before, and approved by
15a resolution of, each House of Parliament.

(6) In this section—

• “Act” includes an Act or Measure of the National Assembly for Wales;

• “legislation”, in relation to regulations made under this section, means—

  (a)

  an Act passed before or in the same Session as this Act, or

  (b)

  20an instrument made under an Act before the regulations come
  into force.

93 Financial provision

There is to be paid out of money provided by Parliament—

(a) any expenditure incurred by a Minister of the Crown under or by virtue
25of this Act, and

(b) any increase attributable to this Act in the sums payable under any
other Act out of money so provided.

94 Commencement

(1) The provisions of this Act come into force on such day as the Lord Chancellor
30or the Secretary of State may appoint by order, subject to subsections (2) and
(3).

(2) Section 51 comes into force at the end of the period of two months beginning
with the day on which this Act is passed.

(3) Section 61 and this Part come into force on the day on which this Act is passed.

(4) 35Paragraphs 23 to 25 of Schedule 7, and section 31(6)(b) so far as it relates to
those paragraphs, come into force on the day on which this Act is passed.

(5) An order under this section is to be made by statutory instrument.

(6) An order under this section may—

(a) appoint different days for different purposes, and

(b) 40make transitional, transitory or saving provision.