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Lord Hunt of Wirral: There are number of gaps in the response of the noble Baroness. First, her argument is that the provision would be an undesirable fetter. However, she has not yet given the Committee the benefit of her view, or that of the Government, on the passing of the last amendment which preserved the principle of access to justice. We seek to build on that principle.

The Minister's point about those who can afford to pay does not answer the point raised from our Benches and those of the Liberal Democrats. We are particularly concerned about people who are just above the threshold. Although she may say that it does not apply to legally aided applicants, she will be aware that the Government have virtually abolished civil legal aid. Most applicants must now enter a complicated mechanism called a conditional fee agreement on a no win, no fee basis. Those agreements were introduced without proper research, and the courts must now deal with the consequences.

My final point is that we are dealing with the law of diminishing returns. As fewer and fewer people pay court fees, the court fees rise. Although the noble Baroness seeks to persuade us that an increase of around 12 per cent is small, I do not believe that it is, particularly given some of the specific fees. There is a

27 Mar 2003 : Column 917

problem now that fees are being set too high. With the deficit, there is underfunding. The Master of the Rolls recently pointed out that the IT system underpinning the civil justice reforms has not yet been implemented. The Minister should reconsider. She has not responded to my invitation to meet the Civil Justice Council. I hope that she will consider it.

In the mean time, I wish to press Amendment No. 132C, which would exclude judicial salaries, and to test the opinion of the Committee. Therefore, I beg leave to withdraw Amendment No. 132A.

Amendment, by leave, withdrawn.

[Amendment No. 132B not moved.]

Lord Hunt of Wirral moved Amendment No. 132C:

Page 42, line 10, at end insert—

"( ) The Lord Chancellor may not under this section seek to recover judicial salaries."

The noble Lord said: I beg to move.

11.22 a.m.

On Question, Whether the said amendment (No. 132C) shall be agreed to?

Their Lordships divided: Contents, 90; Not-Contents, 87.

Division No. 1

CONTENTS
Ackner, L.
Alderdice, L.
Anelay of St Johns, B.
Arran, E.
Ashdown of Norton-sub-Hamdon, L.
Astor of Hever, L.
Avebury, L.
Baker of Dorking, L.
Blatch, B.
Bowness, L.
Brooke of Sutton Mandeville, L.
Buscombe, B.
Byford, B.
Campbell of Alloway, L.
Carey of Clifton, L.
Carlisle of Bucklow, L.
Cockfield, L.
Cope of Berkeley, L. [Teller]
Crickhowell, L.
Dahrendorf, L.
Dean of Harptree, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Donaldson of Lymington, L.
Dundee, E.
Elis-Thomas, L.
Elliott of Morpeth, L.
Falkland, V.
Finlay of Llandaff, B.
Flather, B.
Freeman, L.
Gardner of Parkes, B.
Geddes, L.
Goodhart, L.
Hodgson of Astley Abbotts, L.
Howarth of Breckland, B.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Jenkin of Roding, L.
Jopling, L.
Laird, L.
Lang of Monkton, L.
Livsey of Talgarth, L.
Luke, L.
Lyell, L.
McNally, L.
Maddock, B.
Marlesford, L.
Marsh, L.
Methuen, L.
Michie of Gallanach, B.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Monro of Langholm, L.
Mowbray and Stourton, L.
Moynihan, L.
Noakes, B.
Northover, B.
Norton of Louth, L.
Palmer, L.
Park of Monmouth, B.
Peel, E.
Perry of Walton, L.
Pilkington of Oxenford, L.
Rawlings, B.
Redesdale, L.
Rotherwick, L.
Russell-Johnston, L.
Saltoun of Abernethy, Ly.
Sandwich, E.
Selsdon, L.
Sharman, L.
Shaw of Northstead, L.
Skelmersdale, L.
Smith of Clifton, L.
Strange, B.
Thomas of Gresford, L.
Tordoff, L.
Vivian, L. [Teller]
Waddington, L.
Wakeham, L.
Wallace of Saltaire, L.
Weatherill, L.
Wilcox, B.
Williams of Crosby, B.
Williamson of Horton, L.

NOT-CONTENTS
Acton, L.
Amos, B.
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Bhatia, L.
Blackstone, B.
Blood, B.
Boston of Faversham, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Craig of Radley, L.
Crawley, B.
David, B.
Davies of Oldham, L.
Dixon, L.
Dubs, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Fyfe of Fairfield, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Grabiner, L.
Grocott, L. [Teller]
Hardy of Wath, L.
Harrison, L.
Haskel, L.
Healey, L.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Howells of St. Davids, B.
Hoyle, L.
Irvine of Lairg, L. (Lord Chancellor)
Jones, L.
Judd, L.
King of West Bromwich, L.
Lipsey, L.
Lofthouse of Pontefract, L.
McIntosh of Haringey, L. [Teller]
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Masham of Ilton, B.
Merlyn-Rees, L.
Morgan, L.
Morris of Manchester, L.
Nicol, B.
Orme, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Ramsay of Cartvale, B.
Scotland of Asthal, B.
Sewel, L.
Sheldon, L.
Sheppard of Liverpool, L.
Simon, V.
Smith of Gilmorehill, B.
Stone of Blackheath, L.
Strabolgi, L.
Taylor of Blackburn, L.
Temple-Morris, L.
Tomlinson, L.
Turner of Camden, B.
Varley, L.
Whitaker, B.
Williams of Elvel, L.
Williams of Mostyn, L. (Lord Privy Seal)
Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

27 Mar 2003 : Column 918

Clause 87, as amended, agreed to.

11.31 a.m.

Clause 88 [Award of costs against third parties]:

Lord Goodhart moved Amendment No. 133:

Page 42, line 17, after "of" insert "all or any part of the"

The noble Lord said: In moving Amendment No. 133, I shall, with the leave of the Committee, speak also to Amendment No. 136. My noble friend Lord Thomas of Gresford will speak to Amendment No. 138, which is also in the group.

27 Mar 2003 : Column 919

Amendments Nos. 133 and 136 are probing amendments designed to clarify some of the terms of Clause 88. The clause inserts a new Section 19B of the Prosecution of Offences Act 1985, introducing, for the first time, provision for the award of costs against third parties in criminal proceedings. A third party costs order is defined as,

"an order as to the payment of costs incurred by a party to criminal proceedings by a person who is not a party to those proceedings".

I assume that a third party costs order can apply to part of the costs incurred by a party to the proceedings and not simply to the whole of the costs, and I have tabled an amendment that would clarify that. Although I have little doubt that that is what subsection (2) of the new section means, I would like it clarified.

Amendment No. 136 is designed to deal with a significant omission from new Section 19B. The new section says nothing about the nature of the proceedings by which a costs order may be made against a third party. It is obvious that justice requires that a third party to criminal proceedings—in other words, somebody who is outside the proceedings and is not a party himself—cannot be ordered to pay the costs of those proceedings, unless there has been a hearing at which he is entitled to be present and make the case as to why a third party costs order should not be imposed.

There is no provision in the new section that requires the regulations to be made by the Lord Chancellor to include any provision either for notifying the third party or, more importantly, giving the third party a right to a hearing at which objections can be made to an order being made against him for payment of costs. I beg to move.

Lord Hunt of Wirral: This is an important group of amendments, and I want not only to respond to the words of the noble Lord, Lord Goodhart, but to speak to Amendments Nos. 134 and 135 and support the points that the noble Lord just made.

The intention to introduce a new power for the magistrates' courts and Crown Courts was backed up by a statement made by the noble and learned Lord the Lord Chancellor that the power should be deployed against the media, as he described it. The proposal is of real concern to the Newspaper Society, particularly to the 1,300 regional and local newspapers—daily and weekly titles, paid-for and free—published by its members throughout the United Kingdom. The Committee will know that, as has been pointed out, such newspapers cover the day-to-day work of the criminal courts. I know that the concern that is being expressed is shared by the Society of Editors.

The principle, which everyone supports, is that justice must not only be done but be seen to be done. That requires that justice be administered in public, so that the process and the results are open to public scrutiny. It is important to aid public understanding of the way in which the criminal justice system operates.

27 Mar 2003 : Column 920

Often, it is left to the local and regional media to ensure that people are aware of how the criminal law operates.

As they stand, the provisions—namely, the wide-ranging and, to some extent, uncertain powers to make substantial costs orders against the media—will be a disincentive to the reporting of proceedings. Editors, newspapers and the media will face the risk of the award of costs of legal defence and the cost of premiums for insurance against wrongful attempts to impose such penalties. For smaller papers, comparatively small sums could exert a chilling effect on the reporting of court proceedings.

Amendments Nos. 134 and 135 would identify what "serious misconduct" is. As the Bill stands, that need not be contempt in any form, a breach of a court order or a reporting restriction or any other breach of criminal or civil law. It is wrong to introduce new controls over reporting in that way. At the moment, if there has been a mistake, the matter is dealt with under existing law, backed by powerful sanctions but with procedural and substantive legal safeguards for freedom of expression.

Like the noble Lord, Lord Goodhart, I am concerned that there will be a risk that orders for prohibitive costs will be made arbitrarily against third parties—in particular, newspapers—for conduct or publication that is not even unlawful. That could have a chilling effect on reporting and publication that would be detrimental to open justice and public scrutiny and to public understanding of the criminal justice system. I hope that the Minister will reconsider.

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