Baroness Levitt (Lab)

My Lords, I begin with Clause 12. There are two points that I want to make at the outset: the Government’s motivation for introducing this provision is not to save money, and we do not wish there to be a chilling effect on private prosecutions. Indeed, we are supportive of the long-standing right to bring a private prosecution and we recognise the important part such prosecutions play in the criminal justice landscape. Expenditure on private prosecutions is, as the noble and learned Lord, Lord Keen, has already said, a very small proportion of overall Ministry of Justice spending. 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 Justice Committee highlighted three key principles which should underpin reform. These are: first, addressing the disparity between defence resources and those of private prosecutors; secondly, safeguarding the right of individuals to bring a private prosecution; and, thirdly, ensuring the proportionate and responsible use of public funds. We agree with the Justice Committee about these principles. At present, there are no prescribed rates for private prosecutors recovering costs from central funds, which is public money. This 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. The courts play a vital role in overseeing private prosecutions and have made a number of important changes, but, as the noble and learned Lord, Lord Thomas of Cwmgiedd, said during debate in Committee, this is a matter with which the Government have to grapple. The question of the amount of costs recoverable in principle is a matter of public policy and it is appropriate that such policy decisions are made by a democratically accountable officeholder, rather than developed incrementally through case law. The enabling power in Clause 12 ensures that any framework adopted has a clear statutory basis and is subject to parliamentary oversight. The majority of private prosecutions do not result in any claim on central funds and will be entirely unaffected by this measure. Moreover, most private prosecutors are assiduous in applying the full code test set out in the Code for Crown Prosecutors and in their overall conduct of the case. But there is some evidence that, at the margins, the near certainty of substantial costs recovery may cause private prosecutions to be pursued which are either disproportionate or an unsuitable remedy, when the issue in dispute is essentially one which requires a civil law adjudication.