Investigatory Powers Bill

Debate between Lord Garnier and Oliver Letwin

Ping Pong: House of Commons
Tuesday 15th November 2016 Commons Chamber

[Sir Edward Garnier]

It might if both new clauses became law, but it might not if the new clause to which the hon. and learned Lady has referred did not become law, and we were left with only the one with which I am dealing.

My second point is this. Why should a well-intentioned and successful defendant publisher have to risk the expense of successfully defending a claim and then having to pay the costs of the unsuccessful claimant? That strikes me as unjust. The House is famous for passing laws that are laden—replete—with unintended consequences. It seems to me, however, that when an amendment paper contains a proposal that will clearly lead to a problem—although I am not suggesting that it would be an insoluble problem—we would be foolish not to warn the Government against it. I am delighted to see that the Government seem to have mustered their forces and thinking processes in such a way that an unjust law will not be passed.

When I spoke in the House following the publication of the Leveson report, I was sufficiently pompous and self-confident to rebuke Members who thought that the inquiry, and the report that followed it, meant that there would be state regulation of the press. There will be no such thing as a consequence of the Leveson inquiry. However, I feel that I am entitled to warn Members who, like me, thoroughly disapprove of illegal phone hacking not to assume that once the words “phone hacking” have been uttered, that permits the House, the Government and the courts to rain down on successful, innocent and well-intentioned defendant publishers the burden of the costs of successfully defending a claim.

It should be borne in mind that defendants do not choose to be defendants. Of course they choose to publish the material that they have got hold of, but it is the claimant who feels obliged, or makes the choice, to sue the defendant. To be sued as a defendant is tedious enough, but to be sued as a defendant, to win, and then to be required to pay the costs of the unmeritorious claim must surely constitute even more of a punishment.

[Sir Oliver Letwin (West Dorset) (Con)]

Is there not another choice that the media can make? Can they not choose to subscribe to a compliant regulator and thereby avoid the need for all the regulation and legislation that we do not want to see in the Bill?

[Sir Edward Garnier]

Of course I understand what my right hon. Friend has said. He is one of the most sophisticated proponents of the “nudge” or incentive system of lawmaking, and I salute him for that. I sometimes wonder, however, whether it is a good idea to use the force of what are essentially the punitive elements of the legal system to encourage innocent defendants to pay the costs of unmeritorious claims. Yes, in a perfect world we would all settle our disputes, and people would not even provoke disputes in the first place; but to be compelled, on penalty of having to pay out large sums in legal costs, to join an organisation of which one either does not approve for one reason or another, or does not wish to join for one reason or another, strikes me as unjust.

I have been a victim of, shall we say, stupid conduct by the press. It is very annoying. I have seen others, not only my friends and colleagues but people for whom I have acted, having to deal with the misconduct of the media. But I would rather have a system which recognised justice—