Defamation Act 2013: Northern Ireland

Lord Lexden Excerpts

Thursday 27th June 2013 Grand Committee

Asked by

[Lord Lexden]

To ask Her Majesty’s Government what assessment they have made of the implications of the Defamation Act 2013 not applying to Northern Ireland.

[Lord Lexden]

My Lords, this is a short debate. It is also the last debate of the day, indeed of the week, but its subject is of the utmost importance. When it is implemented, the Defamation Act 2013 will transform an area of law that has been much criticised over many years. It will introduce major improvements and confer great benefits on the people of England and Wales, particularly those working in our ever expanding media industries, one of the great success stories of our country today.

No one knows more about those improvements or understands the prospective benefits more fully than my noble friend Lord Lester of Herne Hill. His patient, determined work over a long period prepared the ground for what has now been enshrined in legislation. I am delighted that he is able to take part in this debate, along with other noble Lords who are far more versed than I am in the provisions of this hugely significant Act. I am immensely grateful to them.

The law of defamation in Northern Ireland has never been detached from that in England and Wales. In the 1950s, Westminster and the Stormont Parliament introduced the same changes to it. Now, however, for the first time in our history, Northern Ireland is to be severed from England and Wales in this wide area of law. For an ardent Unionist like me it is a highly disagreeable prospect, although I could be persuaded to accept it if compelling reasons existed to justify Ulster’s severance. I have not yet heard or read them.

As a layman in search of enlightenment and truth I turned to a leading legal expert in Northern Ireland, Mr Paul McDonnell, a partner in the distinguished Belfast firm of solicitors, McKinty and Wright. In recent months he has made a careful study of the legal implications of Ulster’s severance. I asked him for an assessment to which I could refer in this debate and this is what he sent me yesterday:

“The refusal of the Northern Ireland Executive to extend to Northern Ireland the remit of the Defamation Act, and the legal clarity and free speech protection it brings, is quite simply unjustifiable. Why should the citizens and journalists of Northern Ireland not be afforded the same protection as those in the rest of United Kingdom, whether they are expressing opinions online or holding government to account? Why, as the rest of the United Kingdom embraces the digital revolution, should Northern Ireland be confined by archaic and unfocused freedom of expression laws, some of which were conceived when computing was in its infancy?

The development of a dual defamation system may also have consequences extending across the Irish Sea. Publishers and broadcasters may be forced to sanitise their once uniform national output lest they fall foul of the antiquated laws still operating in Belfast. Investigations in the public interest which concern well-funded organisations will effectively be subject to censorship by the back door, as regional publications will be unable to report on matters for fear of court action in this libel-friendly, free speech limiting UK outpost.

As a lawyer practising in Northern Ireland, I take pride in our legal system. Failure to bring the law in relation to defamation in line with England and Wales will do nothing for the judicial system’s standing. Similarly, failure to introduce this law will inexorably hamper the transparency of government”.

Lawyers do not always deliver clear, decisive opinions. There is nothing opaque or unclear about Mr McDonnell’s expert opinion. I was struck by Mr McDonnell’s phrase, “UK outpost”. It stirred memories of that great film, “Passport to Pimlico”, in which Pimlico—where I happen to live now—suddenly becomes part of the Kingdom of Burgundy and subject to ancient Burgundian law. By the end of the film the Burgundians are cut off from electricity, food and water and become dependent on people tossing food parcels over the wall they have put up to keep the rest of the world out. Chaos ensues, in which it is the ordinary Burgundians who suffer before common sense produces a resolution. There is a parallel here that is worth pondering. If Northern Ireland is cut off from the new defamation law, the consequences might not be so hilarious or short lived as those faced briefly by the people of Pimlico in that old film.

Noble Lords who do not give close attention to events in the new, more politically stable Northern Ireland that has followed the Belfast agreement 15 years ago might assume that the Northern Ireland Executive’s decision to opt out of the new Defamation Act, and remove Northern Ireland from the framework of Westminster’s law, was taken after full and careful consideration of the implications. Noble Lords would be wrong to make such an assumption. Responsibility for this area within the Northern Ireland Executive rests not with Northern Ireland’s Justice Minister, as might have been expected, but with the Minister of Finance and Personnel.

With very considerable difficulty journalists in Northern Ireland—not, it should be noted, the elected Members of the Northern Ireland Assembly—established in March this year that the Minister of Finance and Personnel had submitted a paper on the new defamation legislation to the Office of the First Minister and Deputy First Minister in May 2012. Shortly afterwards, he withdrew his paper—a decision for which no explanation has been offered. When the matter was raised in the Northern Ireland Assembly at the beginning of this month, Martin McGuinness, the Deputy First Minister, stated:

“We have had no discussions with the Minister of Finance and Personnel on that matter ... It is very important to say that the Executive have not taken any decision in relation to a Defamation Bill. It never appeared on the agenda of any Executive meeting”.

In pondering that remarkable statement, is not Parliament’s duty clear? We must surely send to the Executive, who we all support, through this debate and by other means, a message encouraging them to put the Defamation Act on their agenda and consider it fully. In this connection we should note, too, the welcome inquiry which is now being carried out by the all-party Finance and Personnel Committee of the Assembly and pay tribute to the leader of the Ulster Unionist Party, Mr Mike Nesbitt, who is bringing forward a Private Member’s Bill in the Assembly to extend the new Defamation Act to Northern Ireland.

I say this not only on my own behalf but on behalf of my noble friend and colleague, Lord Empey, the chairman of the Ulster Unionist Party, who cannot be here today. He has asked me to state his position which is as follows:

“I am a supporter of devolution, but I do not believe it should be at the expense of the integrity of our nation. Devolution should help sustain that integrity while allowing for regional difference. The mistake that was made after 1921 was that London more or less forgot about Ulster. No attempt was made by London to ensure an appropriate degree of national consistency in all key policy areas. We must avoid repeating that mistake”.

This debate provides the Government with an opportunity to set out their position. The issue is one in which the Ministry of Justice is directly involved. I hope that both it and the Northern Ireland Office are in constructive and vigorous dialogue with the Northern Ireland Executive, particularly in view of the moves that are afoot in the Assembly to take discussion of the defamation issue into a new phase. Above all, I hope that this debate will show that across party political lines we share the same objective: to do all that we can to prevent the establishment of a dual defamation system in our country.