Northern Ireland (Miscellaneous Provisions) Bill

Debate between Lord Black of Brentwood and Lord Bew

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.