Northern Ireland (Miscellaneous Provisions) Bill

Lord Black of Brentwood Excerpts

Tuesday 25th February 2014 Lords Chamber

[Lord Black of Brentwood (Con)]

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

I have been involved in this issue throughout the process, since it first became apparent that there was a real problem in the debate that my noble friend led on this last summer, at the launch of the Private Member’s Bill by Mike Nesbitt in Belfast in September and in Committee on this Bill. Throughout that time, some powerful arguments have been put forward in favour of change, both here in Parliament and by civil society organisations in Northern Ireland, the media and academia among them. There have been strong arguments about the impact on jobs, to which my noble friend referred and about the impact on ordinary people who, in the phraseology of the mortgage adverts, could find their home at risk for something that they have simply written on Twitter or Facebook. There is the damage that could be done to the creative economy in Northern Ireland and to academic freedoms in higher education as well as the real dangers of media plurality.

We have heard many other arguments advanced today by my noble friend Lord Lester about the difficulties that the judiciary will face, and my noble friend Lord Lexden made reference to the difficulties that litigants will face, and those seeking to protect their reputation. So there have been many powerful arguments that in my view, given the gravity of the situation, should be met with equally strong ones as to why the new Defamation Act should not apply in Northern Ireland, particularly as this issue impacts on the most fundamental human right—free speech. If there are arguments, we should hear them today, but all we have had is a deafening silence: silence from the Northern Ireland Executive and silence from the political establishment in Westminster, which I fear simply wants to shy away from the issue on the basis, as the noble Lord, Lord Pannick, says, that this is a devolved matter. In Committee, my noble friend the Minister majored on this point, comparing the situation in Northern Ireland with that in Scotland, missing the fundamental point that there is a different libel law in Scotland. That has nothing to do with devolution, but is to do with development of the common law that dates back many centuries. False comparisons such as that will not do. Deafening silences will not do, because freedom of speech for an important part of our United Kingdom is at stake.

Northern Ireland (Miscellaneous Provisions) Bill

Lord Black of Brentwood Excerpts

Monday 3rd February 2014 Lords Chamber

[Lord Bew]

My Lords, I support the amendment, which is in my name and those of the noble Lords, Lord Lexden and Lord Black. I support it very much for the reasons that the noble Lord, Lord Lexden, has given. I declare an interest as I served on the Select Committee of both Houses that worked on the defamation question in the year leading up to the Defamation Act which has recently passed. The committee was chaired by another Ulsterman, the noble Lord, Lord Mawhinney. Both of us feel a certain pain that the one part of the United Kingdom in which the Act is not effectively operating is the part from which we come. I feel a particular pain on the grounds that the noble Lord, Lord Lexden, has already referred to—that a key part of the Defamation Act was to enhance academic freedom. It consequently means that my fellow academics at Queen’s University in Belfast are now second-class citizens with respect to academic freedom as it is now being defined and protected in the rest of the United Kingdom.

There is an important point here with respect to the recent Haass talks. One of the key reasons why those talks failed in Belfast was around the issue of dealing with the past. Do we honestly believe that the antediluvian libel laws, which restricted freedom of certain key questions with respect to the past in Northern Ireland, should be maintained to improve understanding of the past? The idea is too ridiculous to consider for a minute.

Although I was deeply committed to the Defamation Act when it went through the House, I fully accept and understand that there are serious reasons why serious people had objections. I can respect that, but we are in a changed situation. As far as the bulk of the United Kingdom is concerned, this is now the law of the land. It places people in Northern Ireland in a different situation; it is not simply a matter of the merits or demerits of the old law. It is the new concrete situation that has been created by the change in the rest of the United Kingdom that I want to consider. On my way here I read the Belfast Telegraph in which a Member of the Northern Ireland Assembly referred to the debate that he knew would take place here this afternoon. That Member made a fair and certainly accurate point which I accepted, that this is a devolved matter for the Assembly. However, there are some things that are devolved matters for the Assembly which are, as it were, matters which stay in Northern Ireland, if I can put it like that.

Whether one approves or disapproves, the Northern Ireland Assembly’s view on gay marriage is an issue that is internal to Northern Ireland. Another issue that does not quite stay in Northern Ireland is the position of the Northern Ireland Assembly on abortion, which effectively means exporting many of Northern Ireland’s problems to the United Kingdom. None the less it can be argued that there are issues where the Assembly reserves its competence on devolved matters which affect only the people of Northern Ireland. In this case there is an “incoming” element—the United Kingdom media, which have to operate within Northern Ireland, and the greater risk to which they are now exposed. It has to be remembered that the people of Northern Ireland have many virtues, but not being naturally litigious is not one of them. I have put that as a double negative as I think that it is the most polite and accurate way of stating it.

There have been many major libel cases in Belfast over the years of the Troubles in which very heavy costs were paid out by our national media. Put ourselves in the position now of a Northern Ireland judge. In the past a Northern Ireland judge at least had the comfort that his job was to interpret the libel law as it existed throughout the rest of the United Kingdom. If a case comes up tomorrow, the Northern Ireland judge is now dealing with a much more difficult and complicated question. He will be dealing with media produced in the rest of the United Kingdom where certain assumptions now exist about what can and cannot be said and operating and trying to deal with a legal problem in a part of the United Kingdom where those assumptions do not exist. The Government have to think seriously about the almost intolerable position that the Northern Ireland judiciary will be placed in if it is left with this status quo. I do not know quite how one makes these judgments.

We have talked much about the European Convention on Human Rights and how it is part of the Good Friday agreement. It is also a part of the continuing responsibility of the Secretary of State in the Northern Ireland Office. The European Convention on Human Rights is significant in the important respect of the defence of freedom of expression. I remind the Government that under the conventions they are committed to, and under the terms of the Good Friday agreement, these issues of freedom of expression are potentially part of their remit.

[Lord Black of Brentwood (Con)]

My Lords, in supporting this amendment I declare my interest as executive director of the Telegraph Media Group, and I draw attention to my other media interests in the register. I believe that all those who have an interest in safeguarding jobs in Northern Ireland, who have an interest in the health of its creative economy—which is so often the motor of economic progress—and who have an interest in the quality of its governance, have great cause to be thankful to my noble friend Lord Lexden for tabling this probing amendment so that this issue can be properly addressed.

As my noble friend said, we last looked at it in a debate in June when I set out from the perspective of somebody involved in the media the profoundly damaging consequences of the Northern Ireland Executive’s inexplicable decision not to implement the Defamation Act in Northern Ireland. I do not need to go over that ground again, not least because my noble friend has summarised it so eloquently. I support absolutely his analysis of the six things that will flow from this decision. There is certainly no doubt in my mind that this quixotic decision will cost jobs. It will put off the vital investment that is needed to create a sustainable economy based on modern industries, and it will expose ordinary people in Northern Ireland—anyone who uses social media, which I suspect is the vast majority of the population there—to the intense dangers of costly legal actions that can destroy lives.

Three things have happened since we had that debate in June that make the case for action ever more powerful and urgent. First, as my noble friend said, has been the strong response to the consultation on Mr Mike Nesbitt’s Private Member’s Bill. It is a very thorough and very well publicised exercise that has produced an overwhelming response in favour of the Bill. I praise Mr Nesbitt for the way in which he handled the consultation so magnificently. People in Northern Ireland have clearly understood the dangers of the status quo and the need to bring Northern Ireland’s libel laws into line with England and Wales. The case was powerfully made out in the Belfast Telegraph today, as mentioned by the noble Lord, Lord Bew. So, the media are in favour of change. We now know that ordinary people are in favour of change. Civic society in Northern Ireland wants action, and international press freedom organisations have been queuing up to support change. The only stumbling block appears to be the Northern Ireland Executive, who, as my noble friend said, have never produced one compelling argument in favour of their position. That is the first thing. We now have a very clear view of public support.

Secondly, since the debate, there has been the sealing of the royal charter on press regulation. Since that took place in October, I understand that the Northern Ireland Executive have decided to opt out of the provisions, or rather not to opt in to them. I say that I understand because it is not easy to discern how, when or why the decision was taken. As noble Lords will be aware, I am no fan of the royal charter—completely the opposite because I believe that it has potentially long-term damaging consequences for press freedom. But I have to set my personal views on that to one side. The point is that the charter is now part of a hugely complex legal web, including provision of exemplary damages in libel and privacy cases that is now ensnaring the rest of the UK media. If Northern Ireland is outside of that and outside of the Defamation Act, that will produce massive legal uncertainty of the sort talked about by the noble Lord, Lord Bew. There will be uncertainty for the media, for litigants taking actions against newspapers, magazines or any other media, and for the wider creative economy. Uncertainty is the enemy of the law and it is also costly. It will cost jobs, as we have heard, and it will cost extra money for those seeking legal redress. So the decision on the charter compounds the problem over defamation in a way which will be deeply destabilising.

Defamation Act 2013: Northern Ireland

Lord Black of Brentwood Excerpts

Thursday 27th June 2013 Grand Committee

[Lord Black of Brentwood]

My Lords, I declare an interest as executive director of the Telegraph Media Group and draw attention to my other interests in the register. We are all indebted to my noble friend Lord Lexden for securing this debate on an issue which is crucial not just for the people of Northern Ireland, a part of our country for which he is such a sturdy champion, but, as he said, for citizens across the UK.

On the surface, this may appear to be a dry and technical legal issue but in reality it is a challenge to UK law that will, unless resolved, have grave and far-reaching consequences for the future of the creative economies and jobs in Northern Ireland, for tens of thousands of ordinary citizens there who use the internet, for journalists and, perhaps above all, for the quality of government and governance in Northern Ireland. I am a strong supporter of the Defamation Act 2013. It clarifies the law to make it easier to understand and cheaper to use. It tackles the chilling impact of the previous libel regime on free speech and updates an antiquated area of law, making it fit for a digital age. It is a liberalising, modernising piece of legislation in which this House in particular should take great pride, because of the role of the noble Lord, Lord Lester of Herne Hill, in fighting to bring it about.

Perhaps the most inexplicable aspect of the Executive’s decision not to adopt this modernising legislation is that it shows no understanding of the profound changes happening in the media which, in all their guises, have become global. Content is spread around the world at the click of a mouse not just by media companies but by ordinary citizens who tweet, blog or use social media to express and share opinions. It is not possible to declare UDI from that. The structure of law needs to keep pace with that profound social and technological change, or else the law itself falls into disrepute. The Executive’s decision to cling to legislation from a world which has disappeared makes King Canute look perfectly reasonable.

When politicians set their face against their future, investment and jobs suffer. Over 4,000 people work in publishing in Northern Ireland, while another 2,000 work in broadcast. Some of those jobs may well be at risk if media companies decide that it is now too dangerous to operate in a jurisdiction that stifles freedom of expression and exposes them to financial risk, at a time when the publishing industry is under severe commercial pressure. Certainly, the foreign investment that the Province needs for its creative industries to prosper will be deterred. I can see no circumstances in which Google, Yahoo!, AOL, Twitter or others would establish businesses in an area that tied them to an out-of-date, repressive libel jurisdiction. This decision in effect rejects the high-end jobs that the Province desperately needs. The Executive decision will therefore have real human consequences for the people of Northern Ireland.

It will pose a problem for UK publishers, too. If Northern Ireland clings to the existing law, editors will have to either edit each edition for Northern Ireland separately, in the process sanitising the news and subjecting copy to different legal scrutiny—something I think unlikely to happen—or withdraw their papers from sale, with the profound consequences of that for media plurality. The UK’s publishers will have to confront that issue if there is no change of heart at Stormont. Alternatively, our Government might in the end be forced to legislate in the way President Obama’s Administration did to protect American companies from foreign rulings that impinge on freedom of expression—something directed against London, to our great shame, under the old libel regime but which will now be targeted on Belfast. Belfast might have a short-lived moment in the sun as the libel capital of the world but could find itself isolated internationally as Governments move to protect businesses from the courts in Northern Ireland. It could become a pariah.

I referred earlier to the grave impact this decision could have on the quality of democracy in the Province. For democracy to function it needs the scrutiny and free flow of information to the electorate that only a vibrant, pluralistic free press can provide. That is particularly true in Northern Ireland where there is no scrutinising second Chamber. The role of civic society, especially local and regional newspapers, in providing such constitutional safeguards is more vital there than anywhere else in the UK. Yet a libel regime that is loaded in favour of claimants and punishes defendants with an oppressive system of costs has a profoundly chilling impact on investigative journalism. As the noble Viscount, Lord Colville of Culross, said, it plays into the hands of those who seek to bully journalists and editors, particularly on local newspapers, where the realities of business mean that once lawyers are engaged for someone under scrutiny it is prudent to either drop an investigation or produce a sanitised report. That breeds poor government, bureaucratic cover-ups and, at worst, corruption. It is not just the Province’s 50 regional and local papers—including some of the finest titles in the UK, such as the Belfast Telegraph and Irish News—that will feel the force of this. At risk are many thousands of citizen journalists who blog or tweet about politicians. They could find themselves facing extortionate legal bills that would cripple them or indeed destroy their lives—something the Defamation Act is meant to prevent.

I do not pretend to understand the reasoning behind what the noble Lord, Lord Bew, has rightly described as an act of self-mutilation and which my noble friend Lord Lexden so eloquently compared to the plight of the people of Burgundy. It may have been done because many at Stormont fear the scrutiny that will be enhanced by changes to the law. It may be because a handful of lawyers and claims farmers—the Tweed brigade—in Belfast are intent on trying to make it the world’s libel capital, as if that is a title to be proud of. But whatever the reasons, I know that the consequences will be very real for the people of Northern Ireland that those at Stormont are supposed to represent. It will expose thousands of ordinary people to the intense dangers of costly libel actions. It will blunt the scrutiny role of local and national papers on which citizens depend for information—a role that makes democracy work. It will mean the law remains a toy with which only those with deep pockets can play. It will stop investment with the consequent impact on jobs in the Province’s creative economy. It is wrong in every conceivable way. This is a very grave situation. Either the Northern Ireland Assembly must act to reverse the decision or the UK Government must do it for them.