Northern Ireland (Miscellaneous Provisions) Bill

Viscount Colville of Culross Excerpts

Tuesday 25th February 2014 Lords Chamber

[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.

Defamation Act 2013: Northern Ireland

Viscount Colville of Culross Excerpts

Thursday 27th June 2013 Grand Committee

[Viscount Colville of Culross]

My Lords, I, too, am grateful to the noble Lord, Lord Lexden, for initiating this debate. Like all other noble Lords here, I am pleased that the Defamation Act has passed into law. I look forward to its commencement and the publication of its regulations. I am, however, dismayed that the Northern Ireland Executive have not been prepared to adopt the Act’s principal measures and reform the Province’s libel laws.

As a journalist I can tell your Lordships that it is not so much what happens in the courts but the prospect of what might happen which has such a chilling effect on free speech and encourages the imposition of self-censorship. The new Defamation Act has been deliberately drafted to ensure that authors are protected by a seriousness threshold and a public interest defence. Nowhere is this more necessary than in Northern Ireland.

I have spoken to the editor of the Belfast Telegraph, Mike Gilson, an experienced, respected journalist, who told me:

“Failing to adopt this sensible bill leaves all media and social media users at a serious disadvantage compared with the rest of the UK. In a small country without official opposition the media’s scrutinising role of government and institutions is even more crucial. I have edited newspapers in every country of the United Kingdom and the time and money now needed to fight off vexatious legal claims against us here is the highest I have ever experienced”.

His words were echoed by Mike Nesbitt, the Northern Irish politician who is bringing in a Private Member’s Bill, as has been mentioned.

After talking to diverse journalists in the Province, it seems to me that many of the Province’s politicians are notoriously thin skinned about criticism. Journalists and writers complain of their easy resort to the threat of defamation and keep Mr Paul Tweed, whom the noble Lord, Lord Lester mentioned, busy issuing threats of defamations.

Let me give on example. On 6 August 2012 the News Letter, one of the Province’s leading newspapers, reported that there was a row between politicians in County Antrim about whether to support a proposal to introduce plain cigarette packaging as it would adversely affect their constituents who worked in the local tobacco factory. The paper said that Ian Paisley Jnr, the local MP, was unavailable for comment because he was on holiday. As this was in August, it was perfectly reasonable that he should have been on holiday. Surely even the most hard-working politician is allowed to take a bit of time off to have a rest. However, his lawyer, Paul Tweed, wrote to the paper to say that Mr Paisley was not on holiday at the time of publication and to suggest that he was on holiday and unavailable to deal with the constituents’ concerns was defamatory. The News Letter published a clarification, but was there really a need to send a letter threatening defamation?

This is just one of many threatening letters that have been used to cow journalists in the Province. If journalists and authors are going to receive letters threatening defamation for such vexatious cases, imagine the fear there must be in publishing anything more critical of politicians. The new defences against libel available in the rest of the UK from later this year will offer them protection and surely encourage the advance of free speech in the Province. However, as the noble Lord, Lord Lester, has mentioned, it is not just the people of Northern Ireland who deserve to be protected by the libel reforms; the rest of the people of the United Kingdom do as well. The possibility that these libel tourists who flock to London will now flock to the Belfast libel courts seems very dangerous, and will threaten authors who thought that the cause of free speech had been so strongly enhanced by the passing of the Act.

Take the case of Terence Ewing, who has tried and failed to sue the Times newspaper in London. His case was thrown out there, and then he tried his luck in Belfast. Again, his case was thrown out—I gathered that he is banned from suing there—but in the process, many hours of journalists’ and lawyers’ time at Times Newspapers was expended. Mr Ewing’s efforts are a warning. He could be copied by other litigants who are no longer able to bring action in English courts but will start to threaten journalists through the Northern Irish courts.

During the Second Reading of the Defamation Bill in the House of Commons, as the noble Lord, Lord Lester, mentioned, Ian Paisley Jr said that,

“there needs to be consultation across the jurisdictions of the UK to get this right and tie it up completely”.—[Official Report, Commons, 12/6/12; col. 194.]

However, from what I understand, it is his party, led by Peter Robinson, which has rejected attempts so far to get this right. I gather that the First Minister of Northern Ireland thinks that there is little appetite for reform of the libel law among his electorate, but I ask him to think again. The Province has been a beacon and democracy and peace across the world. Only last week, we heard praise at the G8 summit at Enniskillen for the political leaders in Northern Ireland in making such huge progress to enshrine democracy in a place where, for so long, it appeared to have been under threat.

I remind the First Minister that an essential prop to a healthy and vibrant democracy is an active press which can scrutinise the political progress and hold truth to power, without the deadening threat of being taken to the libel courts. This is a wonderful moment to let free speech thrive. I ask the Minister to do everything possible to encourage the adoption of the great advances laid out in the Defamation Act, which will benefit not just the people of Northern Ireland but all the people of the United Kingdom and beyond.