Northern Ireland (Miscellaneous Provisions) Bill

Lord Carswell Excerpts

Tuesday 25th February 2014 Lords Chamber

[Lord Browne of Belmont (DUP)]

My Lords, defamation, in common with other civil-law matters, is a devolved area, so the law in Northern Ireland is indeed a matter for the Northern Ireland Assembly. As the Minister stated in Committee, it is essential that we all respect the devolution process—and part of that process is that you have different laws in different parts of the country.

Devolution in Northern Ireland permits the devolved legislature and Executive to develop policies that differ from those in the rest of the United Kingdom. Therefore it is only right and proper that the Northern Ireland Executive should have the opportunity to consult on whether or not the Defamation Act 2013 should apply to Northern Ireland. Indeed, the Minister of Finance and Personnel, Mr Simon Hamilton MLA, has already asked the Northern Ireland Law Commission to assess the Defamation Act 2013. The Northern Ireland Law Commission is an independent body and will undertake a complete public consultation on the issue so that the people of Northern Ireland will have an opportunity to contribute to the discussion. I am sure that noble Lords who have contributed to this debate will make a robust submission to the Law Commission.

As we have heard, currently Mr Michael Nesbitt MLA has said that he is to introduce a Private Member’s Bill. To date he has launched a consultation on the issue but as yet no detailed analysis of the responses he has received has been published. I understand that he is willing to pass these responses on to the Northern Ireland Law Commission. The law commission is a fully independent body and is not subject to the direction or control of the Assembly or Government. The Northern Ireland Finance Minister has made it abundantly clear that, as with any other law commission report, all recommendations will have to be thoroughly assessed with a view to making final policy recommendations.

It is only right and proper that the Northern Ireland Executive and Assembly be allowed time to receive this report and I trust that they will act in a responsible manner after receiving its findings.

[Lord Carswell (CB)]

My Lords, the Defamation Act 2013 was wholly admirable legislation which righted and rebalanced the law of libel and slander in a thoroughly excellent way. It needed to be done and had been required for some time and I applaud the efforts of those who supported its enactment and who pioneered the hard work required to get it into legislation.

I cannot understand, and I can think of no sensible or acceptable reason, why the Northern Ireland Executive and Assembly have failed to adopt the Act and put it into effect. However, I have listened with great interest to what has been said today by the eloquent speakers who have supported the amendment and I have read what was said in Committee, when I was not able to be present, and I find myself in complete agreement with practically everything that has been said today about the desirability of Northern Ireland introducing the provisions of the Defamation Act.

I appreciate the kind sympathy that the noble Lord, Lord Lester of Herne Hill, has extended to the Northern Ireland judiciary, of which I was privileged to be part, although not in the litigation to which he referred in such affecting terms. I think it was after I had been translated to become a member of the Appellate Committee of your Lordships’ House and therefore I cannot speak about the rights or wrongs of that case or of any other particular litigation.

Notwithstanding all that I have said, I have concerns and reservations and I owe it to the House and to those noble Lords supporting the amendment to say why. This is a reserved matter, as the noble Lord, Lord Browne of Belmont, has reminded the House, and it is therefore devolved unless taken back by the sovereign Parliament. I accept—there is no doubt about it—that, in principle, this Parliament, as a sovereign Parliament, is entitled to override any part of the legislation and to enact this if it sees fit, if it thinks that it is a proper case to do so.

My concern is whether it is right, sensible or wise to intervene in this way with a reserved matter, however important or desirable it is that the amendment should be put into effect. Where are the limits to lie for the House taking such a step? Is it not dangerous precedence for us to do that, even with something as important and fundamental as this? I accept all that has been said about the importance of free speech and the subject matter of the amendment, but is it wise? Would it create danger; would it start a process? If we do this in relation to this Bill, where will it finish if other people try to press Members of either House to introduce similar legislation amending Northern Ireland law in reserved matters on less fundamental subjects?

I do not find it easy to answer such questions. I am concerned that, if we go down that road, it is difficult to see where it will take us. I would very much like to see the Northern Ireland Executive and Assembly adopting this without delay. It is time it was done briskly and expeditiously, but whether we should do it is another matter. It is with very real regret that I find it difficult to support the amendment, however important and desirable the result would be.

[Viscount Colville of Culross (CB)]

My Lords, I declare an interest as a producer at the BBC. I support this amendment and add my concerns to those of other noble Lords at the refusal of the Northern Ireland Executive to implement the Defamation Act 2013. I was sorry not to have been able to attend Committee but I read, with regret, the Hansard report of the Minister’s speech, in which she said she could do little beyond offering some encouragement for this to go forward.

The failure to implement the Act is having a deleterious effect on free speech in Northern Ireland. Even before the Defamation Act 2013 was implemented in England and Wales, Northern Ireland was particularly blighted as a place where free speech could flourish. The conservative nature of the libel judiciary in Northern Ireland means that a judge has to decide that a jury would be perverse to decide a libel case in favour of one party or the other. This sets the bar very high for the prompt resolution of disputes and allows a plaintiff to say that matters must go before a jury. As a result, trials are lengthy and expensive, whereas, in England and Wales, the judge can, at an early stage, determine the questions of fact about whether a statement is defamatory on a simple balance of probabilities test, which considerably shortens the process.

The disadvantages facing authors in Northern Ireland have been fully exploited by both politicians and putative plaintiffs. The BBC is one of the few organisations big enough to defy the threats of those who want to chill free speech and stop investigative journalism. My indefatigable and courageous colleagues who work on Northern Ireland’s investigative programme “Spotlight” find themselves under attack in a way that is hard to believe in the rest of the UK.

I cite two recent cases. In October 2012 “Spotlight” broadcast a programme called “Belize Oil” which investigated the business affairs of Susan Morrice, a Belfast-born businesswoman, now based in Denver. She raised money for an oil exploratory company called International Natural Energy. Astonishingly, the company struck oil in Belize and made millions of dollars. However, the class B shareholders—many from Northern Ireland—who were not professional investors, did not receive a penny in dividends. They sued Ms Morrice, who was found guilty in a Caribbean court of having siphoned off thousands of pounds of company money for her personal use.

As the programme was being prepared for transmission, the journalists involved were bombarded with daily, sometimes hourly, threats of defamation. After transmission, a libel writ was issued against the programme. Tens of thousands of pounds of licence payers’ money was spent as BBC journalists and lawyers prepared the defence case, only for Ms Morrice to drop the case. This is the woman who has Northern Ireland’s gas and oil exploration rights.