Messing about with the IP Bill
There have been some rather mysterious goings on in the House of Lords in relation to the Investigatory Powers Bill. This is the pantechnicon legislation to regulate the interception of communications, which has had a protracted and highly complicated background including emergency interim legislation in the form of the Data Retention and Investigatory Powers Act 2014, a judicial review originally brought by Labour Deputy Leader, Tom Watson MP, and now Cabinet Minister, David Davis MP and voluminous consultation and explanatory material from the Government.
The Guardian reported on Wednesday that the Lords the previous day had voted to accept an amendment to the Bill to require media companies to pay claimants’ legal expenses on phone hacking cases. That would be a rather startling proposal since costs in civil proceedings would not really seem to be a proper subject for this Bill. In fact, the position is much more obscure than that.
The background to this are the provisions of s. 40 the Courts and Crime Act 2013 which were intended to give teeth to the proposed new regulatory regime for newspapers (arising from the Leveson Report) by imposing a penal costs regime in respect of any legal claim brought against a publication which does not subscribe to the statutorily recognised regulator. The difficulty is that the Government has never brought those provisions into force.
The amendment adopted by the Lords on Tuesday sought to set up a parallel regime in relation to claims brought under the actionable right for a particular form of interception in clause 8 of the Bill. The new costs provision set out in amendment 18 of the order paper mirrors the 2013 Act. But its effect is in fact extremely limited.
Firstly, the new provision relates solely to causes of action based on clause 8 which in turns covers solely interceptions on private telecommunications systems. All the hacking claims brought against the News of the World and The Mirror related to public telecommunications systems (and the claims were in privacy not under any statutory provision).
Secondly, the new provision is necessarily prospective, not least because it relates to clause 8 which must cover interceptions undertaken only after it is brought into force (even though the new costs provision in facts is stated to relate (sub-clause (6)) “to any claim issued after this section comes into force”.
So the amendment could affect only some future claim brought by an individual over some future incident of hacking undertaken by a journalist on a private telecommunications system. After the future of the last few years, the prospect of any journalist undertaking any hacking seems remote, to develop a new form of hacking on a private system seems utterly implausible.
So the amendment is highly unlikely to have any practical effect. It was in fact simply a ruse to push the Government into bringing into effect s.40 of the 2013 Act. Baroness Hollins moving the amendment said expressly:
“The intention of the signatories to this amendment is to persuade the Government to commence Section 40 of the 2013 Act and to do so without delay. ?Naturally, if the Minister can reassure the House that Section 40 will be commenced before Third Reading, the amendment will not be pressed. ”
Whether this is a proper purpose of an amendment, particularly to such a complex and important piece of legislation, is surely something one can question.