Northern Ireland (Executive Formation) Bill

Lord Black of Brentwood Excerpts

Committee: 1st sitting (Hansard - continued): House of Lords
Monday 15th July 2019 Lords Chamber

Moved by

[Lord Black of Brentwood]

25: After Clause 9, insert the following new Clause—
“Extension of the Defamation Act 2013
(1) The Secretary of State must make regulations to change the law relating to defamation in Northern Ireland to provide that the Defamation Act 2013 is extended to Northern Ireland.(2) Regulations under this section must be in force no later than 21 October 2019, subject to subsections (3) and (4).(3) A statutory instrument containing regulations under subsection (1)—(a) must be laid before both Houses of Parliament;(b) is subject to annulment in pursuance of a resolution of either House of Parliament.(4) If a Northern Ireland Executive is formed before the regulations under this section come into force, any regulations made under this section and any extant obligations arising under subsection (1) shall cease to have effect.”

--- Later in debate ---

[Lord Black of Brentwood (Con)]

My Lords, this amendment is also supported by the noble Lords, Lord Kennedy of Southwark and Lord McNally. I declare an interest as deputy chairman of Telegraph Media Group and draw attention to my other media interests in the register.

I will make two general points at the start of this short debate. First, I am a passionate unionist and a supporter of devolution, and I sincerely hope that, by 21 October, the talks process at Stormont will have succeeded and the measures that we are discussing in this amendment will once again be where they belong—in the hands of the people of Northern Ireland.

I would just like to add that I read the debates on this Bill in the other place and listened to the debate here in this House this afternoon and I want to underline that I understand the passions which the issues of equal marriage and abortion—which we have heard so much about in the last couple of hours—give rise to in the Province. I respect that, but this amendment should be an uncontroversial one on free speech and freedom of expression, which do not produce such emotions and concerns. Indeed, on all the evidence I have seen, there is a real appetite in Northern Ireland for change in this area and frustration that, after six years of waiting, we are no nearer to achieving that. I am very grateful for the comments earlier of my noble friend Lord Duncan and his commitment to report in this area and to meet with the noble Lord, Lord Empey, and I. I will certainly take him up on that, but I would like to explain in these few remarks why I do not believe that this goes far enough.

The amendment seeks simply to extend the terms of the Defamation Act 2013 to Northern Ireland, as was always intended by the architects of that legislation. This House needs no reminding of the importance of that Act, in which so many noble Lords played such a vital part. It was one of the most significant and important pieces of legislation to come out of the coalition Government, and it happened after a huge amount of consultation and scrutiny. The Act was three years in the making. It started life here as a Private Member’s Bill brought forward by the noble Lord, Lord Lester, and it was followed by a long consultation, pre-legislative scrutiny by a Joint Committee of both Houses, a draft Bill and consideration in the other place before it finally arrived here.

It was not a long Bill and its purpose was very straightforward. Its aim was to replace our out-of-date, costly and overcomplicated defamation laws which damaged freedom of speech and academic and scientific debate, stifled investigative journalism, and yet failed to afford proper protection to those who were defamed. In their place came a new law for a modern age which provided effective protection for freedom of speech, both online and offline, by discouraging trivial and unfounded actions; clarified and simplified defences for those accused of libel; addressed the scandalous issue of libel tourism; and ensured proper remedies for those who had been genuinely wronged. It has achieved those aims in England and Wales, to the great credit of those who drafted it and guided it into law.

The key point is that it was always intended that this law should apply to Northern Ireland as well as to England and Wales. Scotland, of course, has always had its own separate law of defamation, although it is not one which has ever been significantly out of step with the rest of the country. Any outstanding anomalies will, I hope, be addressed through the new Defamation and Malicious Publications (Scotland) Bill currently under consultation. But the law of defamation in Northern Ireland has never been detached from that of England and Wales, which is why, when the law was last reformed in the 1950s, Stormont and Westminster moved in step. All that changed after 2013 in a way which has severed the Province from the rest of the country in an important area of law when a legislative consent Motion was not taken forward at the time by the Executive. It is still not clear, even after six years, why such an unjustifiable decision was taken at the time to cut Northern Ireland adrift. There was certainly no consultation about it or consideration of the implications. No transparent procedures were applied.

We may never know quite why the decision was taken, but we do know that ever since then efforts have been made to rectify the position with proper consultation. A detailed report and analysis by Dr Andrew Scott of the LSE, undertaken for the former Finance Minister Máirtín Ó Muilleoir, coupled with a consultation paper from the Northern Ireland Law Commission, scrutiny by the Assembly’s Finance Committee and consideration of a Private Member’s Bill on the subject, have all ensured that this short piece of uncontroversial legislation has been comprehensively crawled over in the Province and provided a very extensive evidence base for reform of the law there. Civil society has played its part, too, with a grass-roots campaign supported by more than 10,000 people, including, before her death, the murdered journalist Lyra McKee, and that continues to lobby for change.

That case for change is overwhelming. It is clear that the legislation has worked in England and Wales. It is clear that there is strong demand for its implementation from the people of Northern Ireland, including, crucially, the academic and scientific community. And the legislation, except perhaps for a few claimant lawyers determined to protect Belfast’s unenviable position as the new libel capital of Europe, is not controversial. Therefore , it seems to me that the key issue for us is: why the urgency? Why do we need to use this Bill to extend the Defamation Act to Northern Ireland rather than just waiting for when the Assembly and the Executive are back up and running again, as we all want, and why is the commitment that my noble friend made earlier to report back not enough? Those are very good questions that deserve answers, because they go to the nub of the amendment.

I believe that there are four compelling reasons. The first is one of principle. This is a question of fundamental human rights. The existing libel laws in Northern Ireland, condemned by the UN Human Rights Committee and many other international organisations because of their impact on free speech, deny to many, particularly academics, scientists and journalists, the right to free expression. Article 10 of ECHR, which is enshrined in UK law, protects the right to,

“receive and impart information and ideas without interference by public authority and regardless of frontiers”.

That includes the public authorities of Northern Ireland and the frontier across the Irish Sea. This denial of one of the most basic human rights has gone on for too long and cannot be allowed to go on any longer if we have an opportunity such as this to rectify matters. Rights delayed are rights denied, and the people of Northern Ireland deserve better, so that is urgent.

The second relates to Northern Ireland’s local media, which has such a vital role to play in the proper functioning of democracy in the Province. As many noble Lords will be aware, local publishers are now in a very difficult commercial position across the UK and certainly in Northern Ireland, and they can no longer afford to bear the costs of such an oppressive and expensive libel regime. It is investigative journalism, so crucial in this part of the country, which suffers. Alistair Bushe, editor of the News Letter, wrote to me to say:

“The need for libel reform in Northern Ireland is now more urgent than it has ever been. For more than five years there has been a discrepancy between the legal position in the Province where claimants are not required to show that they have suffered serious harm and the rest of the UK where they are. During that time the financial pressures facing small media outlets across Britain and Ireland have increased making them particularly vulnerable to bullying or vexatious litigants”.


Gail Walker, editor of the Belfast Telegraph, echoed that by writing that,

“an extension of the Act to Northern Ireland is long overdue”.

Noble Lords should remember that under the oppressive system that exists in Northern Ireland, one defamation action that goes wrong could be enough to put a local newspaper out of business.

Statistics from the Northern Ireland Law Commission consultation paper, which show that there are six times as many claims for defamation per capita in Northern Ireland as in England and Wales, underline the point. Of the 30 defamation claims progressed to the High Court in Belfast in the past three years, fewer than five ended with a determination for either party—which shows how vital it is to introduce the serious harm requirements and prevent vexatious complaints. So, as editors testify and the statistics show, the case is urgent.

The third reason relates to the nature of Northern Ireland’s democracy and its governance. As the noble Lord, Lord Murphy, said earlier, Northern Ireland needs more democracy, but to flourish democracy needs a pluralistic, lively and investigative press, vigorous scrutiny of public bodies, open discussion, robust academic debate, energetic citizen journalists and a free and unfettered flow of information, yet the libel regime in Northern Ireland discourages all of that. Do not take my word for it. Here is Lyra McKee, so tragically murdered earlier this year, who had this to say at the launch of the Northern Ireland Libel Reform Campaign in 2014:

“My line of work means I often upset people in power. I often find myself threated with our archaic libel laws. I’ve become involved with the Libel Reform Campaign because a muzzled press equals a poor democracy—and that is what we have. My hope is that we bring Northern Ireland into alignment with the rest of the UK by reforming our archaic libel laws, meaning they can no longer be abused by politicians with things to hide ... For corrupt politicians they have become a means of silencing the press. Northern Ireland can never be a properly functioning democracy”.


That heartfelt plea is an urgent one.

My final point relates to the issue of scientific and academic debate. When we have debated the issue in the past, the noble Lord, Lord Bew—who is in his place and has kindly told me that he supports this amendment—has warned in a number of powerful speeches that failure to reform Northern Ireland’s libel laws would have a profoundly chilling impact on such debate, and so it is proving. At the time of the Defamation Act, a survey of doctors found that half of all GPs felt that the old libel laws restricted the open discussion of the potential risks of drug treatment. Dr Peter Wilmshurst, an NHS cardiologist, told the Assembly that he had spent four years fighting a US corporation that sued him for questioning the safety of a heart valve. The Defamation Act has removed the chilling effect in England and Wales. It should remove it for doctors in Northern Ireland too. Failure to act raises pressing issues of health and safety, making this urgent.

Those are four very real reasons why we should not gamble on the success of the talks and wait until the Assembly and Executive are functioning again—which we all wish to see but none of us can predict. It may take weeks, months or years. However, the problems arising from the failure to reform the libel laws are here right now. They are damaging free speech in the Province, undermining investigative journalism, stifling scientific debate and, above all, disadvantaging the people of Northern Ireland. It has been six years. We cannot and must not wait any longer. It is time to act. I beg to move.

--- Later in debate ---

[Viscount Younger of Leckie (Con)]

My Lords, I have very few remarks to make in response to my noble friend, but I thank him for his long speech. There is no doubt that defamation law in Northern Ireland does not reflect today’s digital age. To echo my noble friend’s words, reform is indeed needed. The issues at stake here hit the very heart of the relationship between citizens, media and the state. It is important to deliver protections in the field of freedom of expression.

My noble friend would like to see progress made to update the Northern Ireland law and I understand that position. There are certainly parts of the Defamation Act 2013 that could usefully be extended to Northern Ireland. However, this Act removed the presumption of trial by jury for libel actions. This may of course shorten and reduce the cost of libel actions.

It is of note that the 2017 Review of Civil and Family Justice in Northern Ireland by Lord Justice Gillen noted the extremely important function of the jury in defamation cases in the context of the Northern Ireland jurisdiction, in particular its role in finding whether the plaintiff has been defamed. As the Gillen review notes, juries in Northern Ireland have been traditionally considered the best fact-finder to judge what words or statements mean in the local context with its unique history, and whether they are considered defamatory in any case. These are matters that involve justice and freedoms, and on which the particular jurisdiction is important. The devolved nature of defamation law in Scotland is reflected in the fact that only a very limited number of provisions in the Defamation Act 2013 have been extended to Scotland, in particular around statements or reports which arise in the scientific or academic field.

Similarly, defamation law is a devolved matter for Northern Ireland; therefore, simply extending the Defamation Act 2013 to Northern Ireland is not appropriate. Further, I understand that, prior to the passage of the Defamation Act, the views of the Northern Ireland Executive were sought as to whether they wished to make a legislative consent Motion to provide for the Act to apply in Northern Ireland, but they declined to do so. Decisions to reform the law should be taken by a restored Northern Ireland Executive. This will allow the unique Northern Ireland context to be taken into account in any reforms. I regret that I am not able to help my noble friend but I respectfully request that he withdraw this amendment.

[Lord Black of Brentwood]

My Lords, I am grateful to the noble Lords who supported this amendment. As the remarks from my noble friend Lord Lexden made clear, this is an issue on which we have been pressing for many years now. I remember well his debate in Grand Committee four years ago, yet no progress has been made. I am grateful to my noble friend the Minister for his comments. Yes, indeed, a legislative consent Motion was declined at the time but no real reason was given for that and none has been given since, which I do not think is satisfactory when we are talking about an area of law of such importance as libel and involving such fundamental human rights as those of freedom of expression. This is an area to which I fear we will have to return. I will take up my noble friend Lord Duncan’s offer to meet to talk about how we might make progress in this area. In the meantime, I beg leave to withdraw the amendment.

Amendment 25 withdrawn.

Cairncross Review

Lord Black of Brentwood Excerpts

Tuesday 12th February 2019 Lords Chamber

[Lord Keen of Elie]

I thank the noble Lord for his contribution. As I have already indicated, I understand why this House is asking for further time to consider the detail of this report. It appears to me that that might be appropriate once we have the White Paper that I referred to earlier and when we have made progress on the initial stages of implementing the recommendations of the report, perhaps setting out a plan for how we intend to take forward its longer-term recommendations. However, I am sure that those responsible for the time of this House will have heard the observations. It is beyond my pay grade but I am confident that they will have listened.

[Lord Black of Brentwood (Con)]

My Lords, I join my noble and learned friend in congratulating Dame Frances on producing a compelling report, which sets out both starkly and boldly the real commercial pressures which are facing all publishers. I declare my interest as deputy chairman of the Telegraph Media Group. Given the scale of the challenges and the punishing pace of change in the industry, which come over so clearly in this report, does my noble and learned friend agree with me that speed is now of the essence and that the most important thing is to move urgently to implement, where possible, some of the review’s major recommendations, particularly in areas such as VAT and taxation, which could bring immediate commercial benefit and allow publishers to invest in the quality investigative journalism that the report highlights?

In other areas, there is much for the CMA and Ofcom to undertake. Does my noble and learned friend believe that the CMA has the capacity to deal swiftly with issues surrounding the advertising market in view of its post-Brexit responsibilities, and does Ofcom have the powers needed to review the BBC online without the need for further legislative change?

[Lord Keen of Elie]

My Lords, I can advise that my right honourable friend the Secretary of State has written today to the chair of the CMA, inviting him to respond as quickly as possible as to whether it is the view of the CMA that it can take on these issues, and he has also written today to the chair of the Charity Commission—so we are intent on taking these issues forward as swiftly as we can.

Data Protection Bill [HL]

Lord Black of Brentwood Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 6th November 2017 Lords Chamber

[Baroness O’Neill of Bengarve (CB)]

My Lords, I add my voice to those of my noble friends and the noble Earl, Lord Attlee. We sometimes forget that in talking about an approved regulator, we do not mean that the Press Recognition Panel is a regulator; it is an audit body—an auditor of self-regulating bodies. The press requires self-regulation, but which meets a standard in which members of the public can have confidence. They can have confidence if the process that we have already agreed of setting up a self-recognition panel is used. It is of course open to IPSO to apply for recognition by that process, remaining self-regulating but recognised, as it is open to other self-regulating bodies to be recognised in that way. This is a satisfactory way of accommodating the interests we all have in having media that are self-regulating but also meet standards.

[Lord Black of Brentwood (Con)]

My Lords, I declare an interest in this group of amendments as executive director of Telegraph Media Group and draw attention to my other media interests in the register.

When I saw, not with a great deal of surprise, that this group of interlocking amendments relating to press regulation had been tabled—perhaps their second or third outing in as many years—I was reminded fleetingly of that famous line of President Reagan to Jimmy Carter in a presidential debate: “There you go again”. That is what this feels like. We have another Bill—with only the most tangential link to the media—and yet another attempt to hijack it to bring about some form of statutory press control. As the Times put it last week:

“The Data Protection Bill is meant to enhance protection of personal data. It is not meant to be a press regulation bill by another name”.


But this profoundly dangerous set of amendments seeks to warp the Bill in just that way.

Can we please be crystal clear about the impetus behind these amendments? It is certainly nothing to do with data protection. It is to try, yet again, to force the British press—national papers, regional and local papers, and magazines: in other words, everything from the Guardian and the Daily Telegraph to the Birmingham Mail, the Radio Times and Country Life—into a state-sponsored regulator, with virtually no members and no prospect of any, and almost wholly funded by the anti-press campaigner Max Mosley. Indeed, it is the very same regulator which was recently brought into disrepute when an internal report found that its chief executive and two members of its board had breached internal standards by distributing tweets attacking major national newspapers and journalists. These amendments try to do that by seeking to remove vital journalistic exemptions enshrined in the GDPR from all those who will not, on grounds of principle, be bullied into a system of state-sponsored regulation. Other amendments seek to remove the protection for freedom of expression, which has worked very well in the Data Protection Act 1998, to balance convention rights and make privacy in effect a trump card.

Let us be clear: the amendments would be a body blow to investigative journalism—at a time when, as we have seen in recent days and weeks, it has never been more vital—by giving powerful claimants with something to hide the ammunition to pursue legal claims and shut down legitimate public interest investigations into their activities even before anything is published. All UK news operations, none of which will under any circumstances join Impress or any body recognised by the Press Recognition Panel, would find themselves under incessant legal challenge, with a profound impact not just on investigations but on news, features and even the keeping of archives. In my view, it is no exaggeration to say that that would overturn the principle that has underpinned free speech in Britain for two centuries: that journalists have the right to publish what they believe to be in the public interest and answer for it after publication—a right upheld by the courts here and all the way up to the European Court of Human Rights.

The protections which make investigative journalism possible would in effect be enjoyed by only a handful of hyper-local publishers which have signed up to a state-backed regulator. Are the noble Lords in whose names these amendments stand really content to see the future of investigative journalism in this country invested in The Ferret or insideMoray, rather than in the teams from the Observer, the Liverpool Echo, the Scotsman and the many others which over the years have broken story after story in the public interest? Frankly, if this were not so deadly serious, it would be funny.

If these amendments ever found their way into this legislation, it would be not just a massive blow for investigative journalism and public interest reporting but a further knock to our international reputation as a beacon for press freedom. No other country in the free world has a system such as the one proposed here, where publications are bullied by politicians into some form of state-backed regulation.

It is six years since the Leveson inquiry took place. In those six years, the world has changed—not just in terms of the commercial position of newspapers and magazines, many of which now fight daily battles simply to survive, but also in terms of strong independent regulation. It is time that we moved on too, and I am very pleased that my party has done so by committing itself to the repeal of Section 40.

This Bill is very carefully crafted to balance rights to free expression and rights to privacy, which of course are of huge importance. It recognises the vital importance of free speech in a free society at the same time as protecting individuals. It replicates a system which has worked well for 20 years and can work well for another 20. To unpick it in the way that this set of amendments tries to do, making so much public interest reporting impossible, is grossly irresponsible, and I hope that the Committee will reject it.

[Earl Attlee]

My Lords, my noble friend has made a very interesting speech, which is very helpful to the Committee, but it would also be helpful to the Committee if we could understand what it is in the requirements of the Press Recognition Panel that makes it impossible, or makes IPSO unwilling, to meet those requirements. What is so difficult about becoming an approved regulator?

[Lord Black of Brentwood]

My Lords, it is not a question of meeting the requirements of the Press Recognition Panel. It is my belief that IPSO probably would meet the requirements. It is a fundamental belief that self-regulation cannot be self-regulation if it is approved by a state-run body. The Press Recognition Panel was set up by royal charter, which is a method of state regulation in all but name, and the press will not and cannot—and in my view absolutely should not—submit itself to something that has state backing in that way.

[Earl Attlee]

My Lords, that is extremely helpful to the Committee but I still do not understand how the state and government Ministers would be able to influence the work of the Press Recognition Panel.

[Lord Black of Brentwood]

My Lords, the Press Recognition Panel was set up by royal charter, underpinned by legislation in this House, legislation to which I was fundamentally opposed. The Press Recognition Panel was set up—I forget the exact figure—with £3 million of taxpayers’ money. It is a state-run body. To have a state-run body which in some way recognises a system of self-regulation negates the whole concept of self-regulation.

[Earl Attlee]

The noble Lord, Lord Black, is being very helpful. The courts are supposed to be independent and they are, but they are funded by the state as well.

[Lord Black of Brentwood]

My Lords, I am going to give way to judicial friends who are probably waiting to speak and will be able to deal with the question about the courts better than I can.

[Lord Lester of Herne Hill (LD)]

I remember Lord Campbell of Alloway once saying to me, “Never make a serious point after the dinner hour”. I think I now understand what he meant. I am in some difficulty, because my noble friends have not moved Amendment 88. I was hoping to make a speech explaining why I profoundly disagree with Amendment 88. Even given the flexibility of the rules of procedure of the House, I am not sure that I can do that until one of them moves Amendment 88. I am going to give them the opportunity of doing so.