I rise to support my hon. and learned Friend the Solicitor General in his resistance to the Lords amendments, which was based on principle rather than over-excitement or hyperbole. It seems to me that the motion put forward in the other place—no doubt well intentioned—does not entirely cover the justice of the case. Before I move on to the main part of my argument, I would like to declare an interest, in that I have some 40 or 45 years’ experience as a member of the media and libel Bar.
The first Lords amendment proposes a new clause to be inserted after clause 8, and I am particularly disturbed by one or two aspects of it. I fully appreciate that as a matter of policy and politics, we in the House, the Government and Parliament generally frequently make use of what I would call the nudge system of trying to encourage people to be of better behaviour. We introduce laws that seek to persuade people not to behave in an antisocial or criminal manner. Broadly, it is the use of incentives to encourage better behaviour, and I have a suspicion that that is what is behind the Leveson report and their Lordships’ proposed new clause.
In some respects, the provision is in the wrong place. The Bill is about investigatory powers and although I accept and applaud the ingenuity of those who introduced the new clause in the other place, I believe that introducing it into this important Bill, though understandable, is not the best place for them to have done so. They risk imperilling the policy behind the Investigatory Powers Bill without advancing their own cause in respect of those grievously and adversely affected by phone hacking.
While the proposed new clause is, on the face of it, of course related to phone hacking, it seems to me that it is not limited to phone hacking. If we look at subsection (1)(b), we see that the defendant in question needs to be “a relevant publisher”—that is fair enough—but if we look at subsection (1)(c), we find that it deals with claims
“related to the publication of news-related material.”
It may be that the news-related material has come as a consequence of phone hacking, and as my hon. Friend the Member for South Dorset (Richard Drax) has correctly pointed out, phone hacking is already a crime and the criminal justice system is already able to get a grip on it. When it comes to the consequences of hacking someone’s phone, there could be a public interest defence to the criminal charge of phone hacking. The newspaper might publish material that a claimant says is in breach of his rights of privacy or a misuse of private information or a breach of confidence, or it could amount to a defamation. None of those additional civil claims is covered by this nudge or incentive proposal. I think that we need to be wary lest a legitimate exposure of misconduct on the part of, say, a public authority or a person in the public sphere might be inhibited by this no doubt well-intentioned new clause.
The first point that I would make to my hon. and learned Friend the Solicitor General is that subsection (1) of the new clause does not limit the nudging or the incentives to the misdemeanour of phone hacking. It goes beyond that, and in doing so, it seems to me, could put a defendant newspaper or publisher in danger of being penalised for doing what might turn out to have been the right thing. As I said a moment ago, it might well be that the initial phone hacking was on the face of it criminal, but there might be a defence for it, and, moreover, the product—the fruit—of that phone hacking, legitimised because it was in the public interest, might lead to a further claim in a cause of action under civil law.
The defendant publisher might win the case, because what had been written might be true, and it might not be against the public interest to publish the confidential information because it had exposed iniquity or something of that nature. The defendant newspaper—if it is a newspaper—should therefore be entitled to win the case and defeat the claim. Under the new clause, however, although the claim had been defeated and the publishing defendant had won the case, the defendant would be required to pay the undeserving claimant’s costs as well as its own because the defendant might not be a member of some approved regulator.