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Baroness Anelay of St Johns: My Lords, I rise briefly to support the amendment, to which I have added my name, for the reasons put forward by the noble Lord, Lord Goodhart.

Lord Renton: My Lords, I, too, support the amendment for yet another reason, which I shall outline briefly. My mother, a British subject, was born in South America, but eventually came over here where she was educated, married and lived her life. The mere words, "born outside the United Kingdom" are very inhibiting. We must amplify them in the way suggested by the noble Lord, Lord Goodhart.

Baroness Scotland of Asthal: My Lords, both this amendment and its earlier variant seek to avert the effect of Section 3 of the Act of Settlement. This would have the effect of enabling the Lord Chancellor to appoint foreign nationals as lay magistrates. On 8th May I gave an assurance in the House that we would consider our position and consult with government colleagues on how best to take this issue forward. We have not yet had the opportunity to obtain a definitive view from colleagues who are dealing with the wider implications of altering nationality requirements arising from the Act of Settlement.

I say again that we have every sympathy with the intention of the amendment. However, we need to consider carefully whether it would be appropriate to include provisions in this Bill because of the planned Crown Employment (Nationality) Bill, which will initiate changes designed to alter nationality requirements for certain holders of offices under the Crown. Both the professional judiciary and the lay magistracy are included in the ambit of that Bill. However, we are actively discussing whether it might be possible to bring forward an amendment to the Courts Bill at a later stage.

I hope that the noble Lord will exercise a little patience on this matter and that he will feel able to withdraw the amendment.

Lord Goodhart: My Lords, I am grateful to the noble Baroness for what she has said on this issue. I shall exercise patience and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 60 [Functions of Chief Inspector]:

Lord Hunt of Wirral moved Amendment No. 18:

"( ) The report made under subsection (1) shall highlight best practice and catalogue inefficiencies in the discharge of the functions of the Inspectorate."

The noble Lord said: My Lords, I raise this issue to remind the noble Lord, Lord Bassam of Brighton, that in regard to this subject he agreed to take away a previous

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amendment and look at the wording in order to check it. The reason I thought it right to bring the matter forward again at this stage is that I have also looked very carefully at the wording and have found that it was word-for-word what the Lord Chancellor had said was the objective of the chief inspector and his functions. I am therefore confident that the noble Lord will say something rather positive about the amendment. In that light, I beg to move.

Lord Bassam of Brighton: My Lords, the speaking notes say that I have,

    "listened with considerable interest as to the reasons why the noble Lord, Lord Hunt, considers Amendment No. 18 to be necessary".

That line is rather more accurate than I had thought when I first read it. The aim of the amendment is to ensure that the annual report submitted by the chief inspector should include highlighting best practice and the cataloguing of inefficiencies. We certainly agree with that objective. However, as I shall explain, the drafting of the amendment does not achieve that aim.

The noble Lord has made it clear that this is a matter that was tabled and debated in Committee. During the debate on 11th February, if our memories can stretch back that far, the noble Lord drew attention to the words of my noble and learned friend the Lord Chancellor in describing the wording in Part 5. When talking about the proposed new inspectorate at Second Reading, my noble and learned friend the Lord Chancellor said:

    "It will ensure an improved and more consistent level of service to all court users by highlighting best practice and reporting on inefficiencies".—[Official Report, 9/12/02; col. 18.]

As I have said previously, one of the primary roles of any inspectorate must be to investigate and report on inefficiencies and to highlight, promote and promulgate best practices. Indeed, the Magistrates' Courts Service Inspectorate has been doing this since its inception. I find it hard to imagine how that reporting function could be properly discharged if the chief inspector, whether it be the current chief inspector of the MCSI or the chief inspector of the new inspectorate of court administration, failed either to highlight best practice or catalogue inefficiencies where appropriate.

On the drafting point, the amendment would seem to be flawed in that it appears to be suggesting that the chief inspector should highlight the best practices and catalogue the inefficiencies in the work of his own organisation. I assume that the noble Lord means that the chief inspector is to report on the best practices and inefficiencies in the functions he is inspecting. But if the noble Lord reads the words carefully, he will see that the meaning could be as I have suggested. For those reasons, and although we share the spirit behind the amendment, I hope that he will feel able to withdraw it.

5 p.m.

Lord Hunt of Wirral: My Lords, I merely wanted to remind the Minister that he said in Committee that he would take the amendment away and see whether the drafting could be improved. Therefore, I rather regret that he has occupied so much time in pointing out the

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deficiencies of the drafting. I am merely waiting for his better wording. Now, as the Bill proceeds to another place, I look forward to seeing it there. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 70 [Criminal Procedure Rule Committee]:

Lord Hunt of Wirral moved Amendment No. 19:

    Page 33, line 22, at end insert—

"( ) Persons appointed under subsection (2) shall be appointed for a fixed period of three years and shall be eligible for reappointment for one future period of three years."

The noble Lord said: My Lords, I hope noble Lords will accept that I studiously and constantly register my interests in these debates—not only as senior partner in a major firm of litigation solicitors, but also as the Minister who introduced the Nolan commission and took great pride in establishing that commission as safeguarding the best standards in public life.

In that context, we have had a previous discussion to clarify the uncertainties over the appointments system. The issue of the length of membership and the process of appointment to procedure rule committees was first raised in Committee. I asked whether the Nolan principles would be used in the making of appointments. I recall that the noble Lord, Lord Goodhart, put the point very clearly, and far more effectively than I had. He said:

    "Under the classic Nolan principle there would normally be an appointment for a period of three years, renewable once but not more than once".—[Official Report, 11/2/03; col. 650.]

In responding to my amendment, the Minister had said:

    "I do not have a pat answer".—[Col. 649.]

I must tell the noble Baroness that that has given rise to some mirth at the Bar, because her name is Pat. But I understand that she has never been known as Pat; she may have been known as Patsy or Patricia, but not Pat. But she assured us that she did not have a pat answer. So one of the reasons for tabling these amendments is to give either her or her noble friend the opportunity to say a little more.

Seriously, it is essential that the process of appointment to courts boards and to the procedure rule committee is transparent and impartial. I beg to move.

Baroness Scotland of Asthal: My Lords, in view of what the noble Lord has said, I hope I can give him a short and succinct "Patricia" answer.

It is right that the noble Lord should take pride in the achievement of the establishment of the Nolan principles. I can assure the House that all appointments to the criminal and family procedure rule committees and to courts boards will be made in accordance with the code of practice issued by the Office of the Commissioner for Public Appointments and will follow the Nolan principles on probity, openness and transparency.

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I think that that might suffice as an answer. If the noble Lord wishes more, I can certainly entertain the House for a good five minutes with further and better information, but I hope that what I have said will suffice.

Lord Hunt of Wirral: My Lords, I hasten to curb the Minister's enthusiasm by quickly saying that I am greatly reassured and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 77 [Family Procedure Rule Committee]:

[Amendment No. 20 not moved.]

Clause 93 [Award of costs against third parties]:

Lord Hunt of Wirral moved Amendment No. 21:

    Page 45, line 34, leave out "(whether or not constituting a contempt of court)" and insert "constituting a contempt of court"

The noble Lord said: My Lords, we turn once again to the award of costs against third parties. There has been considerable consternation outside this House at some of the provisions. I see that Amendments Nos. 21 and 22 are to be taken separately, so I shall speak first to Amendment No. 21.

Perhaps I may explain that the order-making power confers enormous discretion upon magistrates and trial judges to make orders that could require the payment of huge amounts of money by third parties. In those circumstances there should be legal certainty about the way in which the power can be exercised.

I do not believe that we should allow legislation to be enacted which would make third parties vulnerable to third party costs orders for lawful behaviour. They must be able to regulate their behaviour and avoid any act of serious misconduct by reference to recognised and consistent standards. The circumstances in which the powers of the courts can be exercised should, therefore, be limited to behaviour which is recognised as unlawful, and the power should be exercised in a consistent, proportionate and reasonable fashion. The legislation introducing this power should, therefore, at least set legal preconditions that will safeguard against a degree of uncertain, arbitrary and inconsistent use, and certainly against the levying of disproportionate awards in circumstances that do not merit orders.

We had a debate about rights of appeal. They are very valuable, and are vital as additional safeguards; but they can act as a check only after the event. The legislation, in defining the power, needs to delineate the circumstances more precisely, confine the courts' powers more tightly and ensure their consistent application. After all, third parties' successful appeals from the magistrates' court to the Crown Court will not set any legal precedent. Appeals alone, therefore, will not set the kind of consistent and binding standards on the courts which I believe are necessary to regulate their behaviour and prevent unjustified orders being made.

I believe that Amendment No. 21 would provide a better degree of legal certainty and consistency of application. It would mean that before an order could be made against anyone the action alleged to be serious

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misconduct should actually constitute a contempt of court. As third party costs orders can be made at any time, proceedings ought to be delayed until there has been an actual finding of contempt by another court, thereby ensuring the safeguards of independent scrutiny. There would therefore be a known and consistent legal standard with expert, independent scrutiny in every case to ensure that this was maintained. I beg to move.

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