Mr Nick Hawkins (Surrey Heath, Conservative)

I beg to move amendment No. 95, in

clause 93, page 45, line 24, after 'of', insert

'all or any part of the'.

Mr Bill O'Brien (Normanton, Labour)

With this it will be convenient to discuss the following:

Amendment No. 96, in

clause 93, page 45, line 28, leave out 'serious'.

Amendment No. 97, in

clause 93, page 45, line 28, after 'serious', insert 'and wilful'.

Amendment No. 98, in

clause 93, page 45, line 31, at end insert—

'( ) Regulations made under this section must provide that a third party costs order shall not be made unless the court considering making the order has

(a) notified the third party that it is considering making a third party costs order against him, and

(b) if the third party so requests, held a hearing to determine whether the third party has been guilty of serious misconduct and whether it is appropriate to make an order against him.'.

Amendment No. 99, in

clause 93, page 45, line 31, at end insert—

'( ) Serious misconduct shall be an intentional or reckless act that materially contributes to the delay or abandonment of a trial which thereby causes costs to be incurred.'.

Amendment No. 101, in

clause 106, page 58, line 4, after '(3)', insert

'or under section 93 (award of costs against third parties)'.

Mr Nick Hawkins (Surrey Heath, Conservative)

We have views about what ought to be written under clause 93 about the awarding of costs

against third parties. In particular, we considered that it was important to insert the words in amendment No. 97. After the word ''serious'' we should insert ''and wilful.'' We also considered that regulations under the subsection

''must provide that a third party costs order shall not be made unless the court considering making the order has

(a) notified the third party that it is considering making a third party costs order against him, and

(b) if the third party so requests, held a hearing to determine whether the third party has been guilty of serious misconduct and whether it is appropriate to make an order against him.''

Amendment No. 99 states that

''Serious misconduct shall be an intentional or reckless act which materially contributes to the delay or abandonment of a trial which thereby causes costs to be incurred.''

Those serious points ought to be taken into account. If costs are to be awarded against a third party, prior notification to that third party is essential. It is part of the way in which our courts have traditionally operated. Costs should not be awarded against a third party unless that person has had the right to be heard. It is a fundamental principle of English justice that those who may be penalised by the courts have the right to put their case. If protection and precautionary wording is inserted, clause 93 will be much fairer.

We feel strongly about those points. I shall listen with interest to what the Minister says in response, but many people consider that clause 93 does not give a fair balance and sufficient rights to third parties against whom orders may be made. I can envisage that those involved in the press may have strong views about the matter. When I received representations from organisations such as the Fleet Street Lawyers Society, although I would not necessarily go all the way in supporting their views, I considered that there were points in the submissions that ought at least to be debated. It is on that basis that we tabled the amendments.

Mr Norman Lamb (North Norfolk, Liberal Democrat)

I strongly support the basis of the clause. It is right that there be a basis for recovery of costs against third parties, but there is always a danger of creating bad law when there is a sense of injustice about a particular case or a group of cases that leads to precipitate action by Governments. The Dangerous Dogs Act 1991 is always rolled out as a classic example, but there are many other examples of legislation that was designed to attack a particular mischief, but that ended up with inadequate safeguards, or not achieving the objective that it was designed to achieve.

I am acutely conscious that one of the motivations for the provision is the case involving the Leeds United footballers. There was a widespread view that the loss of that trial and the enormous costs to the public purse were an outrage and that the press, which was responsible for it, should have been required to pay the costs lost, quite apart from the damage to the process of justice that was experienced in that case.

I suspect that there is not enormous sympathy for the press barons among the public at large, but it is important in a democracy that safeguards are in place to protect the rights to fair reporting of criminal trials, which we all want. The danger is that, without

adequate safeguards, with these provisions, one could end up with newspapers and other parts of the media feeling constrained with regard to reporting fairly on trials because of the possible consequences.

I wish to deal with some of the specific points that have been raised. I have also received the briefing from the Fleet Street Lawyers Society, and it makes important points that need to be considered and debated. One point is about whether the provisions comply with European convention on human rights rules on rights to freedom of expression and open justice. I would appreciate a response on that from the Minister. The briefing states that there is a danger that the provisions will fall foul of the convention. There is a lack of certainty about the way in which they could be applied.

The FSLS also refers to the Contempt of Court Act 1981, where there is a specific provision that the leave of the Attorney-General must be obtained before a power can be exercised under that Act. There is no comparable provision here. Why not?

The absolute importance of notification and the opportunity to be heard before a ruling is made is an essential element of natural justice. One of the amendments of the hon. Member for Surrey Heath provides for that and I support the case for it.

Finally, there is the question of the interpretation of ''serious misconduct''. That does not involve anything that is illegal or unlawful, because there is no definition of what we mean by ''serious misconduct''. There must be certainty in law for law to be good. We have to be clear about what that phrase means. Another amendment of the hon. Member for Surrey Heath would at least provide a basic definition of what we are talking about here. It also combines wilfulness with seriousness in the description of the misconduct.

These are serious points, and it is important that the Minister fully responds to the concerns that have been raised. There must be adequate safeguards to ensure that there is fair reporting of criminal trials.

Mr Christopher Leslie (Parliamentary Under-Secretary, Department for Constitutional Affairs; Shipley, Labour)

While hon. Members have raised points with great brevity, I shall have to respond in detail. I hope that hon. Members will bear with me because this is a large group of amendments, and I will need to take them one at a time.

Amendment No. 95 would insert in the Bill that the court may order a third party to pay

''all or any part of the''

relevant costs—in other words, that it can decide the proportion of the costs that the third party should pay. I am concerned that that amendment might create a perverse contrast with existing legislation. By spelling out

''all or any part of the''

costs, the clause would create a contrast with section 19(1) of the Prosecution of Offences Act 1985, which provides that:

''The Lord Chancellor may by regulations make provision empowering''

the courts

''in any case where the court is satisfied that one party to criminal proceedings has incurred costs as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings, to make an order as to the payment of those costs.''

Including the phrase

''all or any part of''

in one section but not in another could form the basis of an argument that the section that did not include that phrase might not permit an order to be made as to part of the costs only.

In addition to that danger, the amendment is unnecessary. The clause already allows the court to make an order for all or any part of the costs wasted or incurred. Hon. Members will enjoy what I am about to say. It says in my notes that flexibility is inherent in the words ''as to'' payment of costs. For example, an order requiring payment of half the total costs is an order ''as to'' the payment of costs, as is an order for the payment of all costs.

Amendment No. 95 is unnecessary. Lord Goodhart tabled a similar amendment in another place and was entirely satisfied by the reply that he received from my noble Friend Baroness Scotland. Amendments Nos. 96, 97 and 99 examine the concept of ''serious misconduct'' that would trigger an order, and propose a definition of the impropriety that might attract a third party costs order. The intention of amendment No. 96 is to reduce ''serious misconduct'' to ''misconduct''.

Amendment No. 97 would require misconduct to be serious and wilful. Amendment No. 99 would require that serious misconduct be either reckless or intentional, and must contribute to a delay or abandonment that causes costs to be incurred. We have considered carefully how best to define the scope of the court's new power and have chosen the simple term ''serious misconduct'' without further elaboration. That makes amply clear that the power is exceptional and only intended to catch improprieties that are considered to be serious or grave, while leaving the court maximum flexibility to order third party costs in appropriate cases. The inclusion of further words to define or limit the term ''serious misconduct'' would unintentionally run the risk of excluding circumstances that cannot now be foreseen. For example, we believe that serious misconduct would cover the case of a juror who preferred to go to the races rather than attend court, or a newspaper that published a prejudicial article that caused a criminal trial to be adjourned or abandoned.

We do not want to catch a juror who is 15 minutes late for court through no fault of his own, or a witness who has been intimidated and fails to turn up without due notice because he genuinely fears for his own safety. While those may be misconduct of a sort, they should not attract A liability for costs. We therefore believe that the word ''serious'' is necessary. To remove it would widen the scope of the legislation beyond that for which it is intended.

Mr Norman Lamb (North Norfolk, Liberal Democrat)

Is the Minister envisaging that serious misconduct may be something that falls significantly short of contempt?

Mr Christopher Leslie (Parliamentary Under-Secretary, Department for Constitutional Affairs; Shipley, Labour)

Not being one to interpret court matters, I am not qualified to answer that question. If inspiration strikes, I will elaborate on the matter. I can answer the hon. Gentleman's point about the European convention on human rights. He asked about the term ''serious misconduct'' in that respect. The concepts of both ''misconduct'' and ''serious misconduct'' are already used in other legislation elsewhere without being defined in any further detail. So far there has not been a problem with that definition, nor do we feel that there are human rights implications. When contempt is relevant—in publicity matters, for example—it may fall short of contempt, but not by very much. The clarification of that expression is flexible.

Amendment No. 97 would add the concept of ''wilful'' misconduct. That would be limiting and undesirable.

An impropriety may be serious but not wilful. For example, publishing a newspaper article reckless of the potential impact on a trial should be capable of being caught by the courts, even though it may not have been done wilfully in the sense that there was no wilful intent to disrupt the administration of justice.

However, it is reasonable to believe that professional journalists or editors would understand the high degree of care that needs to be taken with articles about those involved in or related to current criminal proceedings. The word ''wilful'' could unduly restrict the court in cases of reckless acts or omissions where a third party costs order would be appropriate.

Amendment No. 99 seeks to limit the requirements to be satisfied before a costs order can be considered by the court, by limiting the definition of ''serious misconduct'' to an ''intentional or reckless act'', the act to one that makes ''a material contribution'' to the mischief, and the mischief to ''delaying or causing the abandonment'' of a trial.

As I have said, the Government believe that it should be for the courts, after considering all the facts of each case, to determine which improprieties, including omissions as well as acts, constitute serious misconduct. The provisions in clause 93 allow the courts to do so. Where serious misconduct has been established, the courts can determine whether and to what extent it is appropriate for the third party to pay the relevant cost. That will turn principally on the extent to which the serious misconduct has caused a party or parties to the proceedings either to waste or to incur costs.

Mr Norman Lamb (North Norfolk, Liberal Democrat)

Is the Minister not at all concerned that by allowing a wide description courts could interpret the provision in different ways and that the amendment, by defining serious misconduct as either intentional or reckless, which materially contributes to delay or abandonment, creates a framework within which courts can properly assess decisions about awarding costs? It seems that it gives direction to courts that will be helpful to them and will prevent a very wide discretion from being exercised.

Mr Christopher Leslie (Parliamentary Under-Secretary, Department for Constitutional Affairs; Shipley, Labour)

I disagree with the hon. Gentleman. I have already explained how adding further terms involving serious misconduct would potentially create adverse consequences and would not give the court the scope to ensure that those cases of serious misconduct were treated exactly as they should be. I believe that there is ample definition for the circumstances that we are talking about, and that it should be for the courts, after considering the facts of each case, to determine which improprieties, including acts not undertaken or omissions, would constitute serious misconduct.

For those reasons I am also wary of amendment No. 99. This is the rationale by which we have proceeded in drawing up the provision, and it is why we do not feel that adding other notions as the amendment suggests would be desirable.

The hon. Member for North Norfolk supported amendment No. 98, which was tabled by the hon. Member for Surrey Heath. It proposes that when the court is considering making a costs order, the third party must be notified and given the opportunity to make representations before any such order is made. We accept that the third party must have the right to a hearing, but we propose that that be provided in the regulations, not in the Bill itself.

In respect of notice of representation for third parties the Government intend to follow provisions already existing in regulations made for related cases under part II of the Prosecution of Offences Act 1985. Regulations 3 and 3B in those circumstances provide that parties to the proceedings who have acted improperly, and legal or other representatives who have acted negligently, may make representations to the court before any costs order is made against them. I hope that is helpful to hon. Members who are concerned about amendment No. 98.

In those cases, it has been sufficient for the issue of representations to be dealt with in regulations, not in a Bill, and we believe that the same applies in these circumstances. I assure the Committee that we will make similar provision in the regulations in respect of third parties.

Amendment No. 101 proposes that any regulations made under the clause that deal with the award of costs against third parties should be made by way of the affirmative resolution procedure. In preparing the provision, we took the view that none of the usual reasons for using the affirmative resolution procedure applied in this case. The Select Committee on Statutory Instruments raised no objections in its report on the Bill, and hon. Members will know that we attach great importance to its judgment on such matters.

Secondly, we see no reason why the regulations made under clause 93 should require the affirmative resolution procedure, when the existing provisions that they are mirroring have been subject to the negative resolution procedure in other Acts such as the Prosecution of Offences Act 1985. For reasons of consistency, we think that the negative resolution procedure is amply sufficient.

I hope that I have addressed all the amendments in the group in sufficient detail, that the Committee

recognises that the amendments would not be justified, and that they will be withdrawn.

Mr Nick Hawkins (Surrey Heath, Conservative)

I am grateful to the Minister for spending a little time going through all the amendments. He will appreciate that both the hon. Member for North Norfolk and I feel quite strongly about the issues. It was particularly helpful to hear the Minister's response to amendment No. 98, in which he made it clear that third parties will have the right to be heard before any third party costs order is made against them. Of course, amendment No. 98 simply says ''Regulations . . . must provide'', so we were still saying—as was the Minister—that the details would be in regulations. However, the Minister says that he does not want the wording that we have put forward to be added to the Bill because he will make the regulations anyway. Now that he has said so on record on behalf of the Government, we have achieved our main object.

I do not entirely agree with all the Minister's responses on the other amendments. I would have preferred to include the definition of ''serious misconduct'' given in amendment No. 99, and I think that it would have been helpful to include ''serious and wilful'', too. However, I shall not detain the Committee by dividing it on the amendments, as we have dealt with what I regard as the most important issue of all—that third parties should be guaranteed a right to be heard before a costs order is made against them. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 93 ordered to stand part of the Bill.

Clauses 94 and 97 ordered to stand part of the Bill.

Schedule 6 agreed to.